A STUDY OF THE MILITARY INTELLIGENCE SUPPORT ...statement.) iv ABSTRACT A STUDY OF THE MILITARY INTELLIGENCE SUPPORT TO DOMESTIC LAW ENFORCEMENT IN COUNTERDRUG AND COUNTERTERRORISM

A STUDY OF THE MILITARY INTELLIGENCE SUPPORT TO DOMESTIC LAW ENFORCEMENT IN COUNTERDRUG AND COUNTERTERRORISM OPERATIONS

A thesis presented to the Faculty of the U.S. Army Command and General Staff College in partial

fulfillment of the requirements for the degree

MASTER OF MILITARY ART AND SCIENCE

Homeland Security Studies

by

ANDRE’ A. AUTHIER, MAJ, USARNG B.S., Excelsior University, Albany, New York, 1998

Fort Leavenworth, Kansas 2012

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4. TITLE AND SUBTITLE A Study of the Military Intelligence Support to Domestic Law Enforcement in Counterdrug and Counterterrorism Operations

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6. AUTHOR(S) Major André A. Authier, USARNG

5d. PROJECT NUMBER 5e. TASK NUMBER 5f. WORK UNIT NUMBER 7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES)

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Approved for Public Release; Distribution is Unlimited 13. SUPPLEMENTARY NOTES 14. ABSTRACT The purpose of the study will address the legal restrictions placed on Title-10 military intelligence support to civilian authorities within the United States conducting counterdrug and counterterrorism operations. The National Defense Strategy calls for the Department of Defense (DoD) to protect the homeland from terrorist attack and to provide support to the civilian interagency in response to natural or man-made disasters. Annual DoD congressional authorizations allow DoD to support drug interdiction efforts, while DoD Joint doctrine states that drug trafficking and terrorism are closely linked. The main issue is DoD’s reluctance to fulfill this directive, due to the self-imposed limitations on military intelligence, so that it cannot provide much support to law enforcement within the United States. This creates a problem for DoD in how to make use of its intelligence capacity to fulfill the homeland defense directive when DoD restricts itself from providing intelligence support. The problem from the law enforcement and interagency perspectives is their lack of internal intelligence capacity to adequately protect the homeland. Military intelligence can solve the law enforcement intelligence shortfall issue. If DoD understands that it is legal for them to do so and updates its regulations accordingly, then DoD will benefit as well. Research for this topic conducted from August of 2008 thru June of 2011. 15. SUBJECT TERMS Military Intelligence, Posse Comitatus, law enforcement, domestic, counterdrug, counterterrorism, Homeland Security, Homeland Defense, National Guard, federal troops, interagency, counternarcoterrorism, CNT 16. SECURITY CLASSIFICATION OF: 17. LIMITATION

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MASTER OF MILITARY ART AND SCIENCE

THESIS APPROVAL PAGE

Name of Candidate: MAJ André A. Authier Thesis Title: A Study of the Military Intelligence Support to Domestic Law Enforcement

in Counterdrug and Counter-Terrorism Operations Approved by: , Thesis Committee Chair James Beck. M.A. , Member Sean N. Kalic, Ph.D. , Member Timothy McKane, M.S. Accepted this 8th day of June 2012 by: , Director, Graduate Degree Programs Robert F. Baumann, Ph.D. The opinions and conclusions expressed herein are those of the student author and do not necessarily represent the views of the U.S. Army Command and General Staff College or any other governmental agency. (References to this study should include the foregoing statement.)

iv

ABSTRACT

A STUDY OF THE MILITARY INTELLIGENCE SUPPORT TO DOMESTIC LAW ENFORCEMENT IN COUNTERDRUG AND COUNTERTERRORISM OPERATIONS, by MAJ André A. Authier, 199 pages. The purpose of the study will address the legal restrictions placed on Title-10 military intelligence support to civilian authorities within the United States conducting counterdrug and counterterrorism operations. The National Defense Strategy calls for the Department of Defense (DoD) to protect the homeland from terrorist attack and to provide support to the civilian interagency in response to natural or man-made disasters. Annual DoD congressional authorizations allow DoD to support drug interdiction efforts, while DoD Joint doctrine states that drug trafficking and terrorism are closely linked. The main issue is DoD’s reluctance to fulfill this directive, due to the self-imposed limitations on military intelligence, so that it cannot provide much support to law enforcement within the United States. This creates a problem for DoD in how to make use of its intelligence capacity to fulfill the homeland defense directive when DoD restricts itself from providing intelligence support. The problem from the law enforcement and interagency perspectives is their lack of internal intelligence capacity to adequately protect the homeland. Military intelligence can solve the law enforcement intelligence shortfall issue. If DoD understands that it is legal for them to do so and updates its regulations accordingly, then DoD will benefit as well. Research for this topic conducted from August of 2008 thru June of 2011.

v

ACKNOWLEDGMENTS

First I thank God for the privilege, wisdom, and talent to do intelligence work. I

thank my wife Valerie for her patience and understanding when I spent many a late night

reading, writing, and arguing with myself over the thesis and content therein. I thank my

daughters Gabrielle, Lydia, and Tabitha for waiting patiently while Daddy was in his

“bear cave” and periodically ventured in to get bear hugs and tickles.

I thank the leadership of the Iowa National Guard for giving me the opportunity to

attend the full one year Intermediate Level Education course at Fort Leavenworth,

Kansas. Within the Iowa Guard I thank COL Michael Gardner who brought me into the

counterdrug program in 1992, and COL James Taylor, COL Steven Warnstadt, and LTC

Timothy Glynn for mentoring me as a military intelligence officer over the past nineteen

years.

I thank my thesis committee, Mr. Jim Beck, Dr. Sean Kalic, and Mr. Tim McKane

for their long hours reading this thesis and making sound and critical suggestions as to

the content of it. I also thank COL Steven Warnstadt, for an outside set of “intelligence

eyes” to look at the overall picture of the thesis from a military intelligence mindset. I

thank Director Dave Barton, Special Agent in-Charge James Capra, and Special Agents

Ben McIntosh, Dean Yannacito and Stephen Bergeman for their perspectives and insights

as law enforcement professionals for this paper.

vi

TABLE OF CONTENTS

Page

MASTER OF MILITARY ART AND SCIENCE THESIS APPROVAL PAGE ............ iii

ABSTRACT ....................................................................................................................... iv

ACKNOWLEDGMENTS ...................................................................................................v

TABLE OF CONTENTS ................................................................................................... vi

ACRONYMS ................................................................................................................... viii

CHAPTER 1 INTRODUCTION .........................................................................................1

Introduction/Background ................................................................................................ 1 Research Question .......................................................................................................... 4 Assumptions .................................................................................................................... 4 Definition of Terms ........................................................................................................ 6 Limitations ...................................................................................................................... 9 Scope and Delimitations ................................................................................................. 9 Significance of Study .................................................................................................... 10 Summary and Conclusions ........................................................................................... 10

CHAPTER 2 LITERATURE REVIEW ............................................................................13

Introduction ................................................................................................................... 13 Background Information ............................................................................................... 13 Main Federal Laws Governing Intelligence ................................................................. 21 Executive Orders on Intelligence Activities since 1976 ............................................... 23 Department of Defense (DoD) Regulations and Doctrine Governing Military Intelligence Activities ................................................................................................... 24 Memoranda covering intelligence activities and sharing ............................................. 26 Military Intelligence Capabilities ................................................................................. 27 Interviews ...................................................................................................................... 28 Previous Essays ............................................................................................................. 28 Summary and Conclusion ............................................................................................. 30

CHAPTER 3 RESEARCH METHODOLOGY ................................................................36

Introduction ................................................................................................................... 36 Research Methodology ................................................................................................. 36 Discussion of Methodology Feasibility, Suitability, Relevance and Source Credibility ..................................................................................................................... 40 Summary and Conclusion ............................................................................................. 41

vii

CHAPTER 4 ANALYSIS OF LAW, EXECUTIVE ORDERS, AND REGULATIONS 42

Introduction ................................................................................................................... 43 Background and Historic Events .................................................................................. 44

Whiskey Rebellion .................................................................................................... 44 Tax Rebellion of 1799 .............................................................................................. 48 Fugitive Slave Act through Reconstruction .............................................................. 49 The Posse Comitatus Act .......................................................................................... 52

Intelligence .................................................................................................................... 55 Military Intelligence Development ........................................................................... 55 Military Intelligence Domestic Collection in the 1950s and 1960s .......................... 62 Congressional Hearings and the Foreign Intelligence Surveillance Act................... 68

Modern Era ................................................................................................................... 82 The War On Drugs .................................................................................................... 82 9/11 and the 9/11 Commission Report ...................................................................... 86 Executive Orders and DoD Directives ...................................................................... 97 Regulations and Doctrine ........................................................................................ 104

Conclusion .................................................................................................................. 116

CHAPTER 5 ANALYSIS OF CAPABILITIES AND REQUIREMENTS ....................146

Introduction ................................................................................................................. 146 Military Intelligence Capabilities ............................................................................... 146

Personnel ................................................................................................................. 147 Training ................................................................................................................... 150 Systems ................................................................................................................... 150 Information ............................................................................................................. 152 Military Benefit ....................................................................................................... 153

Law Enforcement Support Requirements ................................................................... 154 Summary and Conclusions ......................................................................................... 160

CHAPTER 6 CONCLUSIONS AND RECOMMENDATIONS ....................................166

Summary of findings in Chapters 4 and 5 .................................................................. 166 Interpretations of Findings described in Chapters 4 and 5 ......................................... 168 Recommendations ....................................................................................................... 169 Summary and Conclusion ........................................................................................... 176

BIBLIOGRAPHY ............................................................................................................181

INITIAL DISTRIBUTION LIST ....................................................................................190

viii

ACRONYMS

AIM American Indian Movement

AR Army Regulation

ASA Army Security Agency

C3I Command, control, communications, and technical intelligence

CFR Code of Federal Regulations

CIA Central Intelligence Agency

CIP Corps o Intelligence Personnel

CNT Counter-narco-terrorism

DEA Drug Enforcement Administration

DIA Defense Intelligence Agency

DNI Director of National Intelligence

DoD Department of Defense

EO Executive Order

FBI Federal Bureau of Investigation

FISA Foreign Intelligence Surveillance Act

GBR Ground Based Radar

GSR Ground Surveillance Radar

HEW Health, Education, and Welfare

HIDTA High Intensity Drug Trafficking Area

IES Intelligence Evaluation Staff

ISR Intelligence, surveillance, and reconnaissance

JAG Judge Advocate General

JP Joint Publication

ix

JTF-N Joint Task Force-North

LEA Law enforcement agency

MID Military Intelligence Division

MOS Military Occupational Specialty

NGB National Guard Bureau

NGR National Guard Regulation

NORTHCOM Northern Command

NSA National Security Agency

ONDCP Office of National Drug Control Policy

ORA Organization Risk Analyzer

REMBASS Remotely Monitored Battlefield Surveillance System

ROTHR Relocatable Over the Horizon Radar

SAC Special Agent in-Charge

SIPRNet Secure Internet Protocol Router Network

SA Special Agent

SSA Supervisory Special Agent

UAV Unmanned Aerial Vehicle

USC United States Code

1

CHAPTER 1

INTRODUCTION

Introduction/Background

The purpose of the study is to address the legal restrictions placed on Title-10

military intelligence support to civilian authorities in the United States operating in a

counter-narco-terrorism (CNT) capacity. The National Defense Strategy calls for the

Department of Defense (DoD) to protect the homeland from attack and to provide

support to the civilian interagency in response to natural or man-made disasters.1 Annual

DoD congressional authorizations allow DoD to support drug interdiction efforts.

The main issue is DoD’s reluctance to fulfill this directive, due to the self

imposed limitations on military intelligence support, so that it cannot provide much

support to law enforcement within the United States. This creates a problem for DoD in

how to make use of its intelligence capacity to fulfill the homeland defense directive

when DoD restricts itself from providing intelligence support. The problem from the law

enforcement perspective at the federal, state, and local level, as well as the interagency, is

the lack of internal intelligence analysis capacity to adequately defend the homeland.

Military intelligence can solve the law enforcement intelligence shortfall issue. If DoD

understands that it is legal for them to do so and updates its regulations accordingly, then

DoD will benefit as well.

The U.S. Northern Command (NORTHCOM) is the lead DoD entity responsible

for coordination of Homeland Defense. Military intelligence support to the interagency

within the United States prior to a terrorist incident or in support of the counterdrug

operations mission will help prevent terrorist type incidents. The counterdrug operations

2

mission takes on a new dimension, in that the Department of State lists eighteen of forty–

one terrorist organizations as receiving a sizable portion of their support from drug

trafficking.2 Several of these organizations operating within the United States raise funds

for terrorist organizations that target U.S. persons and interests domestically and abroad,

whether through narcotics trafficking or other fundraising mechanisms. The result is the

War on Drugs and current War on Terror are now intertwined. The problem is the lack of

understanding of the statutory and historical precedence of military support in the United

States, and the case law that gave parameters for military intelligence support.

The ongoing terrorist threat and narcotics trafficking to the United States pose

serious challenges to the interagency role of protecting the homeland. A key component

to winning this fight is the same as winning fights in Iraq and Afghanistan–actionable

intelligence. A shortcoming in this domestic fight is the lack of intelligence personnel to

develop the picture and identify targets for the interagency (i.e. law enforcement) to

investigate and prosecute. GEN Petraeus echoed this view in the fight on terrorism in an

address to the Command and General Staff College Intermediate Level Education Class

09-001 on 22 September 2008. GEN Petraeus stated if he could only increase one

capability, it would be the Intelligence, Surveillance and Reconnaissance (ISR) to focus

kinetic action at the right targets.3 Military intelligence can fill this void based on legal

precedence, but traditionally shied away from it for a variety of reasons. This thesis will

examine the precedence of military intelligence support to law enforcement and mutual

benefits the military and law enforcement stand to gain.

Military intelligence support to law enforcement and the interagency allows for

the development of investigative links that may prevent terrorist attacks and reduce

3

narcotics trafficking. Military intelligence analysts can accomplish this as they search for

administrative and background data from various governmental agencies, along with

Internet and financial databases. The military analysts then can process this information

to develop link analysis of persons involved in the drug and/or terrorist organization, the

commodity flow of money, drugs, and weapons, communication links between

individuals, and some pattern analysis for the groups’ activities. These products would

then be combined with police officer reports to build criminal cases or probable cause for

law enforcement to obtain search warrants.

However, law enforcement’s current focus is not building intelligence capability

within their respective organizations, but rather patrol police officer capacity, as it is in

the public’s view. Law enforcement takes this approach to satisfy the population’s

perception of the problem (not enough street cops) verses a lack of actionable intelligence

that allows the criminal organizations to survive despite law enforcement interdiction

efforts. This practice aligns with the intent of the Violent Crime Control and Law

Enforcement Act of 1994 according to Alfred Blumstein and Joel Wallman in their book

“The Crime Drop in America.”4 Law enforcement officials the author talked with stated

this is a limitation in that police officers remain reactive to crime and criminal patterns,

instead of fully identifying the networks to dismantle the criminal organizations. These

officials admit that working the visible elements of crime does not equate to reducing

crime, as law enforcement rarely identifies, arrests, and prosecutes the driving leaders

behind the criminal activity.

4

Research Question

The primary research question is how can the military intelligence community

support law enforcement in furtherance of domestic counterdrug and counterterrorism

operations in a Title 10 capacity? Military intelligence can provide passive support

domestically utilizing many areas of its capability to support law enforcement and the

interagency in counterdrug and counterterrorism operations in a Title 10 capacity.

However, the military intelligence community is constrained by regulation from fully

supporting what is allowed by law.

The secondary research questions are:

1. What are the limits on military intelligence support to civilian law enforcement

authorities working counterdrug and counterterrorism operations in a Title-10 United

States Code (USC) role?

2. What does the military intelligence community have to offer to law

enforcement in support of counterdrug and counterterrorism operations?

3. How does law enforcement visualize using military intelligence resources in

counterdrug and counterterrorism operations?

4. What, if any, changes to law and/or DoD policy are needed to support law

enforcement in counterdrug and counterterrorism operations?

Assumptions

The U.S. Army military intelligence community’s perception is that it cannot

assist in this role as it is barred by federal law, and subsequently DoD regulations. Most

members of DoD do not understand the legal limits as stated in the laws themselves or

ramifications of Title-10 USC military support to civilian law enforcement authorities.

5

Additionally, based on multiple unfunded requests from LEAs for investigative case

support (i.e. intelligence analysis support) submitted to National Guard Bureau (NGB) –

Operations (J3)—Counterdrug Division (CD) and to Joint Task Force—North (JTF-N)

over the past several years, as well as interviews with law enforcement supervisors on the

subject, the author assumes that law enforcement desires to have intelligence support to

better focus its resources on narcotics and terrorist organizations, not just individuals.

JTF-N, under the mission to supply trained intelligence analysts to federal law

enforcement in support of counterdrug missions, practices this with their intelligence

oversight program. The author had personal experience with this while working an

interagency assignment for a federal law enforcement agency that received a JTF–N (at

the time called Joint Task Force–6) analyst on Title 10 orders. The intelligence oversight

monitor, an Army military intelligence officer, stated that the analyst could not write up

subpoenas for information (for law enforcement to approve), or conduct database

searches on a U.S. person as it violated Posse Comitatus, even though a law enforcement

agent directed the analyst to find the information. The monitor went so far as to state to

the author, who is a National Guardsman, that the author could not write up subpoenas

for information (for law enforcement to approve), or conduct database searches on a U.S.

person by the same law. When the author showed the intelligence oversight monitor the

regulations that authorized the National Guard to do so, the monitor understood he had

more to learn about what the law and regulations state is permissible for military

intelligence to do.

This subject has potential to be useful to civilian law enforcement, as stated by

Dr. Steven Bucci, former Deputy Assistant Secretary of Defense for Homeland Security

6

and America’s Security Affairs. Dr. Bucci references the Washington, D.C. beltway

sniper incident in October, 2002, where military unmanned aerial vehicles assisted law

enforcement in identifying and apprehending the shooters as a way the military

intelligence community can assist law enforcement in counterdrug and counterterrorism

operations.5

Definition of Terms

The author used the below terms to explain background events, agencies involved

in intelligence work, and terms used in the thesis that the reader may or may not

understand. The author provided these terms to clarify to the reader what the author

meant when he used the terms in this thesis.

Church Hearings. Senate hearings concerning foreign intelligence service and the

data collection on US persons using the federal government intelligence agencies.6

Counter–Narco–Terrorism (CNT). Actions taken against terrorism that is linked

to illicit drug trafficking.7

Department of Defense (DoD). The Office of the Secretary of Defense, the

Military Departments, the Chairman of the Joint Chiefs of Staff, the combatant

commands, the Office of the Inspector General of the Department of Defense, the

Department of Defense agencies, field activities, and all other organizational entities

within the Department.8

High Intensity Drug Trafficking Area (HIDTA). Enhances and coordinates drug

control efforts among local, State, and Federal law enforcement agencies. The program

provides agencies with coordination, equipment, technology, and additional resources to

7

combat drug trafficking and its harmful consequences in critical regions of the United

States.9

Intelligence Oversight. The process of ensuring that all DoD intelligence,

counterintelligence, and intelligence related activities are conducted in accordance with

applicable U.S. law, Presidential Executive Orders, and DoD directives and regulations.10

Law Enforcement Agency (LEA). Any of a number of agencies (outside the

Department of Defense) chartered and empowered to enforce US laws in the following

jurisdictions: The United States, a state (or political subdivision) of the United States, a

territory or possession (or political subdivision) of the United States, or within the

borders of a host nation.11

National Defense Strategy (NDS). A document approved by the Secretary of

Defense for applying the Armed Forces of the United States in coordination with

Department of Defense agencies and other instruments of national power to achieve

national security strategy objectives.12

National Guard Bureau (NGB). The agency that administers the Army National

Guard and the Air National Guard; provides liaison between the Army and the Air Force

and various states’ National Guard units.13

National Intelligence. The terms “national intelligence” and “intelligence related

to the national security” each refers to all intelligence, regardless of the source from

which derived and including information gathered within or outside of the United States,

which pertains, as determined consistent with any guidelines issued by the President, to

the interests of more than one department or agency of the Government; and that involves

(a) threats to the United States, its people, property, or interests; (b) the development,

8

proliferation, or use of weapons of mass destruction; or (c) any other matter bearing on

United States national or homeland security.14

National Military Strategy (NMS). A document approved by the Chairman of the

Joint Chiefs of Staff for distributing and applying military power to attain national

security strategy and national defense strategy objectives.15

Office Of National Drug Control Policy (ONDCP). Agency that establishes

policies, priorities, and objectives for the Nation's drug control program. The goals of the

program are to reduce illicit drug use, manufacturing, and trafficking, drug-related crime

and violence, and drug-related health consequences.16

Pike Hearings. Congressional House hearings concerning the intelligence

activities, effectiveness and budget concerning the federal government intelligence

agencies.17

Posse Comitatus. From Latin for "possible force," the power of the sheriff to call

upon any able-bodied adult men (and presumably women) in the county to assist him in

apprehending a criminal. The assembled group is called a posse for short.18

Terrorism. The calculated use of unlawful violence or threat of violence to

inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit

of goals that are generally political, religious or ideological.19

Title 10 USC. Title 10 of the United States Code outlines the role of the armed

forces in the United States CodeIt provides the legal basis for the roles, missions and

organization of each of the services as well as the US DoD. Each of the five subtitles

deals with a separate aspect or component of the armed services. This deals primarily

with those military forces under Presidential or Federal control.20

9

Title 32 USC. Title 32 of the United States Code outlines the role of the United

States National Guard in the United States Code.This deals primarily with those military

forces under Governor or State control.21

U.S. Person. For intelligence purposes, a U.S. person is defined as one of the

following: (1) a U.S. citizen; (2) an alien known by the intelligence agency concerned to

be a permanent resident alien; (3) an unincorporated association substantially composed

of U.S. citizens or permanent resident aliens; or (4) a corporation incorporated in the

United States, except for those directed and controlled by a foreign government or

governments.22

Limitations

The research only covered the two law enforcement agencies responsible for

counternarcotics and counterterrorism—the Drug Enforcement Administration (DEA)

and the Federal Bureau of Investigation (FBI), respectively. The research focused on

Presidential Commissions, Court rulings, Congressional hearings, and laws describing the

intelligence functions of the military in relation to law enforcement.

Scope and Delimitations

This study limited its scope to intelligence support to law enforcement, as

opposed to humanitarian support. It did not address the broader range of military support

to civilian authorities. This thesis did not address Title 32 USC support, except as a

comparison and contrast within the research. This thesis only referenced unclassified

documents concerning the subject.

10

Significance of Study

The National Defense Strategy of 2008 calls for the Department of Defense (DoD)

to defend the homeland from attack and to provide contingency support to civilian

interagency in response to natural or man—made disasters.23 The U.S. Northern

Command (NORTHCOM) is the lead DoD entity responsible to coordinate this. This

thesis sought to answer how the military intelligence community can contribute to this

DoD mission. Specifically, how military intelligence can support law enforcement and

the interagency in reducing narcotics trafficking, and preventing or reducing terrorist

attacks and support. Identifying the parameters of intelligence support will help the

military intelligence community and the U.S. based Commanders to know the full range

of support they are allowed to provide to domestic law enforcement in the

counternarcotics and counterterrorism fight and not break federal law.

Summary and Conclusions

Terrorism and narcotics trafficking in the United States will continue to pose

serious challenges to the interagency role of protecting the homeland. The tie between

narcotics trafficking and terrorism is documented by the State Department and the U.S.

Drug Enforcement Administration.24 As DoD has the responsibility to support the

Department of Homeland Security, it is imperative to identify how the DoD can

contribute in the intelligence arena. This area is more controversial than most areas of

support, as the American public historically resisted the use federal troops inside the

United States, other than for disaster relief. Reviewing the laws, regulations, and the

history that created the controversy is essential to understand DoD’s role in supporting

the Department of Homeland Security in counternarcotics and counterterrorism.

11

1Department of Defense, National Defense Strategy (Washington, DC:

Government Printing Office, 2008), 7.

2DEA–El Paso Intelligence Center (EPIC), Brief given to Midwest High Intensity Drug Trafficking Area-Domestic Highway Enforcement Regional Coordination Committee, El Paso, Texas, 2 October 2008.

3General David H Petraeus, U.S. Army, Speech to the Command and General Staff College, Intermediate Level Education Class 09-01, Fort Leavenworth, Kansas, 22 September 2008.

4Alfred Blumstein and Joel Wallman, The Crime Drop in America (New York, NY: Cambridge University Press, 2006), 208.

5Dr. Steven Bucci, Deputy Assistant Secretary of Defense, Homeland Defense and America’s Security Affairs, Speech to the Command and General Staff College, Intermediate Level Education class 09-01, Fort Leavenworth, Kansas, 31 October 2008.

6L. Britt Snyder, “Unlikely SHAMROCK–Recollections from the Church Committee's Investigation of NSA,” Studies in Intelligence (Winter 1999-2000). http://cicentre.com/ Documents/DOC_ChurchPike_Snider.htm (accessed 22 September 2008).

7Department of Defense, Joint Publication 3-07.4, Joint Counterdrug Operations (Washington, DC: Government Printing Office, 2007), GL-9.

8Ibid., 156-157.

9Ibid.

10Inspector General of the Marine Corps, “Frequently Asked Questions,” Intelligence Oversight 1, no. 1 (January 2008), http://hqinet001.hqmc.usmc.mil/ ig/Div_Intell_Oversight/Newsletter/IO%20Newsletter-200801-Final.pdf (accessed 11 March 2009).

11Department of Defense, Joint Publication (JP) 3-07.4, Joint Counterdrug Operations (Washington, DC: Government Printing Office, 2007), GL-9.

12Department of Defense, Joint Publication (JP) 1-02, Department of Defense Dictionary of Military and Associated Terms (Washington, DC: Government Printing Office, 2004), 368.

13Princeton University, “Wordnet,” Princeton University Press, http://wordnet.princeton.edu/perl/webwn?s=national%20guard%20bureau (accessed 18 October 2008).

12

14Department of Defense, DoD Directive 5143.01, Under Secretary of Defense for Intelligence (Washington, DC: Government Printing Office, 2005), Enclosure 2.

15Ibid., 370.

16The Whitehouse, Office of National Drug Control Policy, http://www.white housedrugpolicy.gov/about/index.html (accessed 18 October 2008).

17Gerald K. Haines, “The Pike Committee Investigations and the CIA,” Studies in Intelligence (Winter 1998-1999), https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/studies/winter98_99/art07.html (accessed 9 October 2008).

18Gerald Hill and Kathleen Hill, People’s Law Dictionary, Fine Communications, http://dictionary.law.com/default2.asp?typed=posse+comitatus&type=1 (accessed 5 March 2009).

19Ibid., 552-553.

20NationMaster, Encyclopedia, Title 10, U.S. Code, http://www.nationmaster.com/ encyclopedia/Title-10-of-the-United-States-Code (accessed 28 November 2008).

21NationMaster, Encyclopedia, Title 32, U.S. Code, http://www.nationmaster.com/ encyclopedia/Title-32-of-the-United-States-Code (accessed 29 November 2008).

22Executive Order no. 12,333, Federal Register 73 (4 August 2008), Part 3.5.

23Department of Defense, National Defense Strategy (Washington, DC: Government Printing Office, 2008), 6-7.

24Drug Enforcement Administration (DEA)–El Paso Intelligence Center (EPIC), briefing given to Midwest High Intensity Drug Trafficking Area- Domestic Highway Enforcement Regional Coordination Committee, 2 October 2008.

13

CHAPTER 2

LITERATURE REVIEW

Introduction

Military intelligence can provide passive support in a Title 10 status utilizing

many areas of its capability to support law enforcement and the interagency in

counterdrug and counterterrorism operations within the United States. To frame the

parameters of this support, this study examined the restrictions placed on the military

intelligence community in relation to its support of civilian law enforcement authorities.

Specifically, the study investigated support for counter–narco–terrorism (CNT) as Title-

10 personnel inside the United States. Chapter 2 discusses the body of literature already

written on the topic. To do this the author reviewed major volumes on the subject, as well

as journal articles and essays, laws, court rulings, and regulations. These documents will

be discussed in this chapter.

Background Information

To understand the restrictions placed on Department of Defense (DoD)

intelligence systems, one must first understand the events that led to the initial restrictions

on U.S. intelligence activities before 11 September 2001. Five major volumes discuss the

historical background and history of federal troop use domestically. These volumes tie to

the thesis as they lay out the historical precedence on the topic of federal troop

employment within the United States and cover the legal and constitutional questions that

arose throughout the period. These volumes are the Posse Comitatus Act and the United

States Army: A Historical Perspective by Matt Matthews, the Role of Federal Military

14

Forces in Domestic Disorders 1789–1878 by Robert W. Coakley, the Role of Federal

Military Forces in Domestic Disorders 1877–1945 by Clayton D. Laurie and Ronald H.

Cole, and the Role of Federal Military Forces in Domestic Disorders 1945–1992 by Paul

J. Scheips, and Military Intelligence by John Patrick Finnegan.

Matt Matthews’ monograph, “The Posse Comitatus Act and the United States

Army: A Historical Perspective,” traced the history of the Act, its revisions and how

presidents implemented it in the United States.1 Matthews asserted history showed the

law is regularly misconstrued, and sought to clarify the nuances of the Act.2 Matthews

wrote the paper in mind of the pressures to change or clarify the law for domestic use in

the post 9/11 era.3 While this work covered Posse Comitatus in depth, it did not cover the

specific restrictions of military intelligence use domestically, which this thesis does.

The second volume, the Role of Federal Military Forces in Domestic Disorders

1789–1878 by Robert W. Coakley, covered the federal troop use from after the

Revolutionary War to the end of Reconstruction.4 The work sought to state plainly the

reasoning behind the decisions to employ federal troops domestically.5 The work also

looked extensively at the early use and justification for that use by framers of the

Constitution who occupied political office during the times of federal troop employment.

After covering several employments of federal troops in the early and mid 1800s, it laid

out the circumstances and events that led to passage of the Knott Amendment, better

known as the Posse Comitatus Act.6

The third volume, the Role of Federal Military Forces in Domestic Disorders

1877–1945 by Clayton D. Laurie and Ronald H. Cole, covered military intervention for

the period from the American industrial revolution after Reconstruction to World War

15

II.7 The authors cite several examples where Congress or the President granted

exceptions to the Posse Comitatus Act, and the resulting societal reactions.8 This work

examined how federal troops deployed to enforce the law in industrial, social and racial

tensions.9 This work pertains to this thesis as it lays out exceptions to the Posse

Comitatus Act, of which counternarcotics is one.

The fourth volume, the Role of Federal Military Forces in Domestic Disorders

1945–1992 by Paul J. Scheips, covers post–World War II to the Los Angeles riots of

1992.10 This work looked at institutional changes affecting domestic use of federal

troops, particularly the Army, after World War II and up to the Los Angeles race riots of

1992.11 This work also examined more of the legal and case law generated by Army

troops deployed domestically, and covered the National Guard in the context of the

Army’s responsibilities to it.12 This work is relevant to this thesis in that it provides

coverage of the military intelligence use and implications during the period the volume

covers.13

The fifth volume, Military Intelligence by John Patrick Finnegan, covered an

organizational history of the Army’s intelligence activities.14 This volume discussed all

intelligence activities worldwide and presents a wealth of information on the domestic

activities of Army intelligence in the Twentieth Century. However, this volume did not

address the legal context of intelligence support, mostly the historical uses. This volume

complements the Role of Federal Military Forces in Domestic Disorders trilogy by

expanding the coverage on the use of intelligence assets within the United States. This

thesis will expand on the military intelligence aspects listed in Finnegan’s volume,

looking at modern uses of military intelligence consistent with statute and case law.

16

Two theses covering the Whisky rebellion and the excise tax that precipitated it

are relevant to this thesis, in that they laid the foundation for why the Executive branch

considered using federal military forces in domestic disorders. Richard Kohn’s “The

Washington Administration’s Decision to Crush the Whiskey Rebellion” laid out the

debate within the federal government on the legality of using federal troops domestically,

and the long term implications that the use of federal troops may cause politically.15

William Barber’s “Among the Most Techy Articles of Civil Police: Federal Taxation and

the Adoption of the Whiskey Excise” examined the whole debate during the Washington

presidency regarding how to raise revenue for the federal government and the inter-

twining power struggle of taxation with the states.16 This work covered the historical

context of the English tax system on the colonists, the strategic effects of a national tax

and the potential for civil strife by enacting the tax.17

Post–Constitutional legislation affecting military use inside the United States

started with the Judiciary Act of 1789 and the Militia Act of 1792, otherwise known at

the Calling Forth Act, and also covered several revisions and legal opinions over the last

200 years. These Acts sought to address unfinished issues from the constitutional

convention on enforcement of federal authority, which implied the use of the federalized

militia by federal marshals. Mr. Mathews notes that from 1807 to 1878, the U.S.

Government viewed using federal troops, both regular Army and the federalized militia,

as permissible.18 As such, these laws form the initial legal foundation in which federal

troops deployed in domestic missions.

Under Reconstruction, Congressional policy centered on assuring civil rights for

newly freed Negros by both law and Constitutional amendment. Congress accomplished

17

this by legislating for the Army to implement federal laws maintaining peace at polling

places, ensuring Negros the freedom to vote without intimidation.19 Southern White

Democrats resented the 100,000 Negros in the Army enforcing the occupation of the

South under the authority of the Calling Forth Act.20 They also resented Congressional

Reconstruction legislation that overrode President Andrew Johnson’s liberal

Reconstruction policies, where the President’s policies allowed white Southerners to

conduct rampant racism against the newly freed Negros.21 Once Congress proposed the

14th Amendment in June 1866, the Army then cracked down on Southern White

discrimination by issuing General Order No.44, authorizing its forces to arrest local

citizens for crimes when the local civilian authorities failed to do so.22 The using of laws

to employ the Army in reconstructing the society in the South favorable to the former

slaves created a backlash within Southern state congressional delegations, and led them

to change the system when they attained the power in 1877.

Congress rewrote the law in 1878 to severely restrict its implementation by the

President as a result of its use in the Civil War. This happened after the Army scaled back

its involvement in reconstruction, resulting in increased intimidation on Negros in the

South. This enabled Southern White Democrats to win back control of the southern state

Governments as well as the House of Representatives by 1874.23 As a result of the

presidential elections of 1876, and further Democrat gains in the 45th Congress, The

Southern Democrats passed the Knott Amendment to the Army appropriations bill in

1878.24 The Knott Amendment mandated that only the Constitution or Congress could

authorize federal troop use domestically, verses a federal marshal or state governor.25

This later became known as the Posse Comitatus Act.26 This law is central to the thesis in

18

that those wishing to restrict or bar military intelligence support cite this law for their

justification.

Congressional legislation throughout the 1900s brought the law back to close to

the era from where the Act started. Congress, through granting exceptions to the Posse

Comitatus Act, allowed the military to be used in numerous situations reminiscent of the

1860s and 1870s. Indeed, Title 10 USC Section 331–334 allows the President to use

either other state militias or “armed forces as he considers necessary to quell civil

disturbances, including insurrection and rebellion.”27

In the 1960s, civil unrest resulting in demonstrations and riots broke out across

the United States, due in part to civil rights demonstrations and marches in support of

increased minority rights, as well as dissenters protesting the United States’ involvement

in Vietnam. This led to several incidents where the President deployed the Army to help

restore law and order in cities where riots occurred, when the riots overwhelmed the

ability of local, state, and National Guard forces to subdue. When former Army captain

Christopher Pyle disclosed the collection activities on U.S. citizens, the Senate held

hearings on the collection in the Senate subcommittee on Constitutional Rights of the

Senate Judiciary Committee in 1971.28 Whole most of the collection involved keeping

articles from journals and newspapers, some collection involved Army intelligence

officers infiltrating dissident groups to gather leader identities, what they were saying,

and how many supporters they had. Other files contained information on the finances,

psychiatric records, and sex lives of individuals.29 Although the information was

extensive, the Senate Subcommittee for Constitutional Rights concluded that Army

intelligence surveillance was not conducted with malevolent intent, but were applying

19

foreign intelligence collection doctrine domestically.30 While Congress reacted strongly

to this, the federal court system ruled the collection activities of publically available

information to be legal.31 With the strong inquiries by Congress in these hearings, DoD

placed restrictions on the military collection activities through DoD Directives 5200.26

and 5200.27, both of which are discussed later in this section. The end effect was that

military intelligence professionals greatly diminished further collection activities on U.S.

persons.

An expanding mission of the Central Intelligence Agency (CIA), combined with

the protests to the Vietnam War led the CIA to collect information on U.S. citizens in

much the same way as the Army did. However, CIA domestic activities did not get much

attention until the Watergate scandal broke in the press. After this, the press covered the

allegations of CIA collection on U.S. citizens as well as other CIA activities. This press

coverage resulted in the Rockefeller Commission, set up by President Gerald Ford, to

determine if CIA employees illegally collected on U.S. citizens and if so, to what extent.

Concurrently with the Rockefeller Commission, Congress launched its own Committee

hearings in both houses in 1975. This paper incorporates findings from the Rockefeller

Commission Report. The results of these Committee hearings impacted military

intelligence as an ancillary effect of reigning in the CIA. Therefore, this thesis will look

at those actions of the CIA and the Congressional backlash in light of the secondary

effects to military intelligence activities.

This paper incorporates four references concerning the Congressional hearings in

1975–1976. The first is “Unlikely SHAMROCK: Recollections from the Church

Committee’s Investigation of NSA” by L. Britt Snider, and covered the Church Senate

20

hearings of the intelligence community on U.S. citizens who disagreed with the Vietnam

War.32 As Mr. Snider was a primary Congressional staffer who worked the background

information on the committee, he discussed the relationship of the Church Committee

with the National Security Agency (NSA) and the administration, and the long terms

implications of the report. The Church Committee looked extensively at the military

intelligence community. The Committees reports, “Improper Surveillance of Private

Citizens by the Military” and “National Security Agency Surveillance Affecting

Americans” are the second and third references covering the subject. These reports

influenced laws and executive orders governing military intelligence activities generated

in the ensuing years.33

The fourth reference reviewed is “The Pike Committee Investigations and the

CIA” by Gerald Haines and covers the Pike House Committee hearings. The Pike

Committee in the House of Representatives looked at the broader intelligence budget and

organization apparatus. The view of the Pike Committee was that most intelligence

collection activities in the U.S were illegal, and sought to publicly expose not only the

activities, but their extent as much as possible.34 This view created an adversarial

relationship with the Executive Branch and intelligence communities and hampered the

Pike Committee from getting most of the information it sought. This committee focused

on the fact that over eighty percent of the U.S. Intelligence apparatus lies within the DoD,

and questioned DoD (and former War Department) intelligence activities in the U.S.35

These hearings are important to this thesis in that the hearings offer the House

perspective, which was more antagonistic to the establishment on intelligence collection

concerning anti-war demonstrators. Since Army intelligence, hence DoD, was heavily

21

involved in anti-war demonstrator collection, the hearings bear weight on the military

intelligence support to domestic law enforcement.

Main Federal Laws Governing Intelligence

The Posse Comitatus Act of 1878 is based on the use of the Judiciary Act of 1789

and the Calling Forth Act of 1792. These two acts form the foundation on which the

President can authorize military support for law enforcement authorities in the United

States. Proponents of military support for domestic disorders cited these two acts

repeatedly to justify the use of military forces to quell civil rebellion in the early history

of the United States. The Posse Comitatus Act sought to reign in the frequent use of these

two (and other) statutes to use the military to enforce civil law. An essay by John

Brinkerhoff, “The Posse Comitatus Act and Homeland Security,” looked at the Posse

Comitatus in the wake of September 11, 2001 events and examines the various

interpretations of the Act.36 A briefing by E. P. Visco regarding the Posse Comitatus Act

and the experience of using the federal militia in domestic roles also looked at long term

implications in the War on Terror.37

Public Law 95–511, otherwise known as the Foreign Intelligence Surveillance

Act of 1978 or FISA law, came out of the findings from the Congressional hearings of

the time.38 This law focused on foreign intelligence purposes instead of the domestic

abuses that spawned the Congressional hearings. This law identified terrorism as a

specific threat in additional to the foreign government spying, so sought to identify the

targets of this Act as either a foreign power or agent of a foreign power. This Act went on

to define the basic definitions of terms relating to intelligence collection, such as U.S.

Person, international terrorism, sabotage, electronic surveillance, and other terms. It

22

described procedures for setting up a court to review legal process domestically where

national security is concerned, and sought to protect the classified ways and means that

information is derived from.

Public Law 108–458, otherwise known as the Intelligence Reform and

Surveillance Act of 2004, affects intelligence activities as a whole. The act incorporated

updates to the various laws governing intelligence collection on terrorist activities as a

result of the terrorist attracts on September 11, 2001.39 This act also covered changes to

FBI collection priorities, transportation intelligence collection and security, joint

terrorism task forces, money laundering and intelligence sharing among all federal

agencies. The act specifically listed some military applications and support which bears

on this thesis.

Code of Federal Regulations (CFR) 28, part 23 covered the criminal intelligence

information systems to ensure they safeguard individual’s Constitutional rights.40 This

also resulted from background events mentioned previously, and served as a limit on

what civilian law enforcement can collect and retain. David Barton, Executive Director of

the Midwest High Intensity Drug Trafficking Area, stated that if the military followed the

same rules as law enforcement, namely 28 CFR, part 23, the military would not have any

issues with intelligence oversight.41

In addition to the statues, the author reviewed three court cases concerning

intelligence collection on U.S. citizens. The U.S. Supreme Court case Laird v. Tatum

dealt with Army spying on U.S. citizens.42 United States of America v. Mary Sue

Hubbard dealt with how a group reacted to the government’s spying on their legal

activities.43 United States v. Red Feather concerned what, if any, support the military

23

furnished to law enforcement was constitutional.44 All of these cases generated case law

in the use of military intelligence in domestic support roles.

Executive Orders on Intelligence Activities since 1976

Executive Order (E.O.) 11905, originally written in President Ford’s

administration, implemented recommendations made by the Commission on CIA

Activities Within the United States, better known as the Rockefeller Commission. The

Order established polices governing intelligence for national security, established

oversight of the intelligence activities, delineated responsibilities of intelligence agencies,

and sought to verify legal compliance.45 This Order included military intelligence

activities into the overall intelligence community and set the definition of a U.S. person.46

Also, in defining responsibilities within DoD, the Order allowed for military intelligence

to support to non-DoD agencies, set limitations on intelligence activities within the

United States, and clarified intelligence support to law enforcement.47 This order set the

first Presidential level parameters after the exposure of Army intelligence activities

within the United States in the 1960s and early 1970s and bears direct correlations to this

thesis.

Executive Order 12333, originally drafted in President Reagan’s administration,

addressed the issues brought up by the Church Committee and Pike Committee

hearings.48 The version used in this thesis includes updates from E.O.13284, E.O. 13355

and E.O. 13470 from President Bush (43).49 President Reagan intended for this document

to bring oversight to the intelligence community and stop Congress from implementing

more restrictive laws. E.O. 12333 expanded the definition of a U.S. person and framed

government intelligence collection on them within the U.S. Person’s constitutional rights.

24

The author noted that E.O. 12333 extended Constitutional protections to non-U.S.

citizens and businesses that met specific requirements as well. This wide definition of a

U.S. Person impacted DoD policy and regulations, which sought to define the limits of

the military’s ability to conduct intelligence activity in the United States. Intelligence

oversight regulations and DoD Directives reference E.O. 12333 as the base document

governing military intelligence activities within the United States. Therefore, this order is

crucial to determine what is legal for military support to law enforcement counterdrug

and counterterrorism support.

The executive orders referenced in the 2008 version of E.O. 12333 have varying

impacts on the earlier version of E.O. 12333. While the author covered these executive

orders here, these orders are not covered separately in Chapter 4 as the updated version of

E.O. 12333 encompassed the content of these orders. Executive Order 13284 issued by

President Bush (43) only pertained to E.O. 12333 in that it brought Homeland Security

under the guidelines of E.O. 12333.50 The new E.O. 12333 revoked E.O. 13355, issued

by President Bush (43), due to changes in the format of E.O. 12333. Executive Order

13355 changes are still in the updated E.O. 12333, but in different locations than

expressed E.O. 13355.51 Executive Order 13470, also issued by President Bush (43),

made administrative and clarifying changes to E.O. 12333, which E.O. 12333

incorporated into the updated version published in the Federal Register in August 2008.52

Department of Defense (DoD) Regulations and Doctrine Governing Military Intelligence Activities

The author researched four DoD Directives that cover intelligence activities

concerning U.S. persons. These directives further refined intelligence laws and Executive

25

orders to implement policies and procedures governing intelligence collection and

dissemination within the United States, which is central to the thesis of how military

intelligence can support civilian law enforcement in counterdrug and counterterrorism. A

brief description of these DoD Directives is listed below.

DoD Directive 5200.26 came as a result of the Army collecting intelligence on

lawful U.S. citizen activities in the 1960s. This Directive covered the oversight of DoD

investigative activities concerning DoD personnel (including DoD contractors),

counterintelligence activities, and collection in support of civil disturbances within the

United States and its territories.53

DoD Directive 5200.27 discussed what the DoD should do when it gains

information on persons and organizations not affiliated with the Department.54 This

Directive served as an overview only and addressed information concerning threats to

DoD facilities and investigations of potential DoD hires. This Directive came as a result

of the Army collecting information on U.S. citizens during the 1960s.

The third directive, DoD Directive 5240.1-R, discussed procedures covering the

DoD intelligence activities affecting U.S. Persons.55 This document laid out the limits of

what DoD can do concerning collection on a U.S. person, was the DoD’s implementation

of Executive Order 12333, and served as the basis of all service manuals regarding the

subject. This document listed fifteen procedures covering the scope, collection of

intelligence, to include the various methods, storage, dissemination, and reporting of

violations regarding intelligence activities affecting U.S. Persons.

The fourth directive is DoD Directive 5143.01, which addressed how the DoD

intelligence components fit in with and under the new Director of National Intelligence

26

(DNI), created by the Intelligence Reform and Terrorism Prevention Act of 2004.56 This

document covered the basic command, working, and reporting relationships of the DoD

intelligence components to the civilian intelligence structure headed by the DNI.

Memoranda covering intelligence activities and sharing

The author found three memoranda from the Executive Branch covering

intelligence activities and functions. Two of these memoranda covered reciprocity of

security clearances to allow members of the various federal government agencies to share

intelligence information without having to conduct additional background checks on the

requestors of the information first. These memoranda are significant in that they

established the protocols for sharing classified, sensitive, and compartmental information

with law enforcement agencies, as well as intelligence requirements those law

enforcement agencies have. As military intelligence support to law enforcement must

consider classification levels, these memos tie into this thesis as they address clearance

issues inherent with interagency coordination. The third memorandum covered funding

issues concerning narcotics and terrorism. This memo ties to the thesis in that it shows

DoD is acknowledging the tie between narcotics and terrorism, which former Secretary

of Defense Rumsfeld resisted.

The first memorandum is from the Director of Central Intelligence Directive 6/4

covered procedures for access to sensitive compartmental information, in layman’s terms

known as classified information. Annex F of this memorandum covered reciprocity of

clearances among federal agencies to facilitate intelligence sharing of terrorist

information.57

27

The second memorandum is from the Office of Management and Budget and

covered the reciprocity of clearances. This memorandum was in response to Public Law

108-458, which mandated the reciprocity of clearances among all federal agencies for

access to the same level of classified information, based on need to know.58

The third memorandum is from the Deputy Assistant Secretary of Defense for

Counter-Narcotics. This memorandum covered using counternarcotics funds for

counterterrorism support, recognizing that the two activities are often interrelated.59 This

memorandum addresses the requirement of the Defense Authorization Act for Fiscal

Year 2006 to do so.

Military Intelligence Capabilities

The author reviewed several publications for military intelligence capabilities.

These included several joint publications on intelligence and the interagency, Army

intelligence field manuals for doctrine and capabilities, and National Guard regulations

on counterdrug activity, the latter to see what is presently being done by the Guard. These

references allowed the author to identify military intelligence capabilities that law

enforcement could use, which this thesis addresses in Chapter 5. While the two main

references on military intelligence capabilities highlighted below are “For Official Use

Only,” the author used these references to collaborate unclassified references to keep this

thesis at the unclassified level.

Handbook 2-50, Intelligence Systems, published by the U.S. Army Intelligence

Center and Fort Huachuca is a “For Official Use Only Document” (FOUO) covering

ground and aerial collection systems, as well as secure communications systems. This

28

book gives some of the capabilities the military intelligence community possesses that

can be used in CNT.

The second document is also a FOUO document prepared by the 743rd Military

Intelligence Battalion, titled Warfighter’s Guide. This document covers the Intelligence,

Surveillance and Reconnaissance systems, intelligence information systems, intelligence

architecture and operations.

Interviews

The author interviewed supervisors from the Drug Enforcement Administration

(DEA), Federal Bureau of Investigation (FBI), and the Office of National Drug Control

Policy’s High Intensity Drug Trafficking Area (HIDTA) Program. These agencies work

counternarcotics and either support counterterrorism investigations (DEA and HIDTA) or

have primary responsibility for them in the United States. (FBI). The interviews involved

acquiring the law enforcement perspective on if law enforcement wanted military

intelligence support, how they would utilize it, and how they viewed laws governing the

military intelligence community’s interaction with law enforcement.

Previous Essays

Previous essays on this subject of this thesis include a Federal Emergency

Management Agency essay and four journal essays. To review, this thesis asserts that

military intelligence can support domestic law enforcement in counterdrug and

counterterrorism in a Title 10 status. The essay, “The Posse Comitatus Act and Homeland

Security,” is a history and analysis of the Posse Comitatus Act and explores the

misconceptions of it. However, this essay did not address all of the legal issues

29

surrounding military intelligence support to law enforcement, so this thesis seeks to

address this void.

An essay published in Military Police titled “Intelligence Support to Law

Enforcement in Peacekeeping Operations,” discusses how military intelligence supported

civilian law enforcement and military police in operations in Kosovo, Serbia.60 This

essay serves as a model for how military intelligence can support law enforcement, and

addresses the military intelligence capabilities that law enforcement used in Kosovo

effectively. This thesis therefore seeks to complement and expand its application on the

domestic front.

An essay published in the Military Intelligence Professional Bulletin titled

“Bridging the Intelligence Gap in the Heartland: Evolving MI Roles in Support to

Domestic Criminal Threats,” covered military intelligence roles in the United States. The

essay parallels this thesis, but again, the essay did not fully address the legal issues of

intelligence support, nor did it establish a law enforcement need.

Another essay is a commentary published by the Criminal Justice Ethics titled

“Guiding Lights: Intelligence Oversight and Control for the Challenge of Terrorism.”

This essay looked more at guidelines for the civilian intelligence agencies in the

counterterrorism role to protect the United States. The commentary is similar to 28 CFR,

Part 23 governing the criminal justice intelligence systems, and bear weight on how

military intelligence can meet the legal restrictions placed on it in support of domestic

law enforcement. This thesis will incorporate the essay as a comparison with 28 CFR,

Part 23.

30

Summary and Conclusion

The above mentioned documents have direct bearing on this thesis as they form

the basis of governing intelligence activities for military intelligence and the intelligence

community as a whole. However, few of these policies and regulations address a support

role to law enforcement vice independent collection and analysis of U.S. person data,

especially if held by law enforcement or collection of data is directed by law

enforcement. This study will help to clarify those restrictions in the light of the Wars on

Drugs and Terror, of which the military is a part.

Chapter 2 addressed the background information on three of the four secondary

questions listed in Chapter 1. The fourth question, “What, if any, changes to law and/or

DoD policy are needed support law enforcement in domestic counterdrug and

counterterrorism operations?” will be addressed in Chapter 6, as it will draw on

conclusions of the research reviewed in Chapters 4 and 5. While Chapter 2 contained a

cursory overview of the major works concerning the thesis of how the military

intelligence can support law enforcement in Counterdrug and counterterrorism, Chapters

4 and 5 will examine the research in much greater detail. In Chapter 3, the author will

cover his research methodology in acquiring the listed materials for this paper.

1Matt Matthews, “The Posse Comitatus Act and the United States Army: A

Historical Perspective” (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 5-34. The topics covered in Chapter One include and overview of the Army as a Posse Comitatus from 1787 to 1865, what the Constitution states about using the Army for law enforcement, overview of the Judiciary and Calling Forth Acts, the Whiskey rebellion, the Fugitive Slave Act and how the presidents from Adams to Tyler used the Army in a Posse Comitatus role. Chapter Two topics include how the Army as law enforcement was used during Reconstruction following the Civil War and the origins of the modern Posse Comitatus Act of 1878, dealing with both Presidential and Congressional views on using the Army prior to the 1878 passage.

31

2Matt Matthews, “The Posse Comitatus Act and the United States Army: A Historical Perspective” (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 1.

3Ibid., 1-2.

4Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789-1878 (Washington, DC: Government Printing Office, 1988), vii.

5Ibid.

6Ibid., 344.

7Clayton D. Laurie and Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders 1877-1945 (Washington, DC: U.S. Army Center of Military History, 1988), v.

8Ibid., 3.

9Ibid.

10Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945-1992 (Washington, DC: U.S. Army Center of Military History, 1988), v.

11Ibid., vii.

12Ibid.

13Ibid.

14John Patrick Finnegan, Military Intelligence (Washington, DC: U.S. Army Center of Military History, 1998), xi.

15Richard H. Kohn, “The Washington Administration’s Decision to Crush the Whiskey Rebellion” Journal of American History 59, no. 3 (December 1972), 570-571, http://www.jstor.org/stable/1900658 (accessed 2 April 2009).

16William D. Barber, “‘Among the Most Techy Articles of Civil Police’: Federal Taxation and the Adoption of the Whiskey Excise” The William and Mary Quarterly, 25, no. 1 (January 1968), 58-84, http://www.jstor.org/stable/1900806 (accessed 3 April 2009).

17Ibid., 60-62.


19Ibid., 32.

32

20Ibid., 23.

21Ibid., 24.

22Ibid., 25n12; This is referenced by Matt Matthews from James E. Sefton’s work, The United States Army and Reconstruction, 1865-1877 (Baton Rouge: Louisiana State University Press, 1967), 73.

23Ibid., 30.

24Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789-1878 (Washington, DC: Government Printing Office, 1988), 343-344.

25Ibid.


27U.S. Congress, Insurrection Act, Title 10 United States Code, § 331 and 335, http://www.freerepublic.com/focus/f-news/1477646/posts (accessed 3 December 2008); § 331: Federal aid for State governments–Whenever there is an insurrections in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection; § 332. Use of militia and armed forces to enforce Federal authority–Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

28Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945-1992 (Washington, DC: U.S. Army Center of Military History, 1988), 390.

29Ibid., 395.

30Ibid.

31United States v. Red Feather, 392 F. Supp. 916 (D.C.S.D. 1975).

32L. Britt Snyder, “Unlikely SHAMROCK–Recollections from the Church Committee's Investigation of NSA,” Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans, (1976), http://cicentre.com/ Documents/DOC_ChurchPike_Snider.htm (accessed 22 September 2008).

33

33Senate, Book III: Improper Surveillance of Private Citizens by the Military, 94th Cong. 2nd Sess. (1976), http://www.icdc.com/~paulwolf/cointelpro/ churchfinalreportIIIk.htm (accessed 2 February 2009); Senate, Book III: National Security Agency Surveillance Affecting Americans, 94th Cong., 2nd Sess. (1976). http://www.icdc.com/~paulwolf/cointelpro/churchfinalreportIIIj.htm (accessed 2 February 2009)

34Gerald K. Haines,“The Pike Committee Investigations and the CIA,” Studies in Intelligence (Winter 1998-1999), https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/studies/winter98_99/art07.html (accessed 9 October 2008); The basis of the statement is in several paragraphs, where Pike “believed the agency to be a rogue elephant “out of control.” Also, “Pike insisted that the committee had the authority to declassify intelligence documents unilaterally.” This is the aberration where general intelligence procedures state that: either the originator of the document, a review committee of intelligence professionals, or the date has passed on the “Declassify line” are the ones who can declassify documents.

35Ibid., under the section “Investigation of the Intelligence Budget,” first paragraph and third paragraph from the end.

36John R. Brinkerhoff, “The Posse Comitatus Act and Homeland Security,” Homeland Security Journal (February 2002), http://www.homelandsecurity.org/journal/ Articles/brinkerhoffpossecomitatus.htm (accessed 23 September 2008).

37Eugene P. Visco, “More Than You Ever Want to Know About Posse Comitatus” (MORS Workshop, Homeland Security–Homeland Defense, Baltimore, MD, November 2005), http://www.mors.org/meetings/hls/presentations/visco.pdf (accessed 3 January 2009).

38Foreign Intelligence and Surveillance Act of 1978, Public Law 95-511, 95th Congress (25 October 1978); The Church and Pike Committee reports published in 1976 laid out the extent of the federal government’s collection. This included both foreign and domestic aspects. Public outrage at the extent of the domestic collection program, to include collection of anti-war demonstrators and civil rights demonstrators, led to the implementing of the FISA law and a court to oversee it as a way to curb the Executive Branch’s power in collecting on U.S. citizens.

39Intelligence Reform Act of 2004, Public Law 108-458, 108th Cong., 2nd Sess. (17 December 2004), 1.

40Criminal Intelligence Systems Operating Policies, 28 CFR, Part 23, Volume 63, no. 250, 71752-71753 (30 December 1998), 2, http://www.it.ojp.gov/documents/ 28CFR_Part_23.PDF (accessed 3 December 2008).

41David Barton, interview by author, Kansas City, MO, 25 November 2008.

34

42Laird v. Tatum, 408 U.S. 1 (1972).

43United States v. Mary Sue Hubbard, et al. Criminal No. 78-401 (District of Columbia, 1979).

44United States v. Red Feather, 392 F. Supp. 916 (D.C.S.D. 1975)

45Executive Order 11,905, Federal Register, § 1. http://www.ford.utexas.edu/ LIBRARY/speeches/760110e.htm (accessed 17 February 2009).

46Ibid., § 2.

47Ibid., § 4.

48Executive Order 12333, Federal Register, (1981), Part 2, § 2.1 and 2.2. http://www.archives.gov/federal-register/codification/executive-order/12333.html (accessed 22 September 2008).

49Executive Order no. 12,333, Federal Register No. 73, (4 August 2008), 1.

50Executive Order no. 13,284, Federal Register No. 68, (28 January 2003), 4075.

51Executive Order no. 13,355, Federal Register No. 69 (1 September 2004), 53593.

52Executive Order no. 13,470, Federal Register No. 73 (4 August 2008), 45325.

53Department of Defense, Defense Investigative Program, Directive 5200.26, 1971 (Washington, DC: Government Printing Office, 1979), 2-3.

54Department of Defense, DoD Directive 5200.27: Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense (Washington, DC: Government Printing Office, 1980), 1.

55Department of Defense, DoD Regulation 5240.1-R: Procedures Governing the Activities of DoD Intelligence Components That Affect United States Persons (Washington, DC: Government Printing Office, 1982), 2.

56Department of Defense, Directive 5143.01: Under Secretary of Defense for Intelligence (USD(I)) (Washington, DC: Government Printing Office, 2005), Reference and §1 - Purpose.

57Director of Central Intelligence. Personnel Security Standards and Procedures Governing Eligibility for Access to Sensitive Compartmented Information, Directive No. 6/4 (Washington, DC: July 1998), 1.

35

58Office of Management and Budget. “Reciprocal Recognition of Existing Personnel Security Clearances” (Memorandum, Washington, DC, December 2005), 1.

59Deputy Secretary of Defense – Counter-Narcotics. “Use of Counternarcotics Funds for Counterterrorism” (Memorandum, Washington, DC, April 2006), 1-2.

60Jeffrey Jenning and Jennifer Gaddis. “Intelligence Support to Law Enforcement in Peacekeeping Operations,” Military Police 19.2 (September 2002), 16. Remote access for CFSC and AKO, http://find.galegroup.com/itx/start.do?prodId=SPJ.SP00 (accessed 17 November 2008).

36

CHAPTER 3

RESEARCH METHODOLOGY

Introduction

Understanding all the ways the military intelligence community in a Title 10

status can support law enforcement in the furtherance of counterdrug and

counterterrorism operations will help the Department of Defense (DoD) determine how

to best support the interagency in preventing or reducing terrorist attacks and support.

Military intelligence can provide passive support utilizing many areas of its capability to

support law enforcement and the interagency in counterdrug and counterterrorism

operations within the United States. Therefore, this research purposed to identify the legal

parameters of military intelligence support in a Title 10 status to domestic law

enforcement in order to assist the military intelligence community and the commanders

based within the United States in understanding the full range of support they are allowed

to provide law enforcement in support of counterdrug and counterterrorism operations

and not break federal law.

Research Methodology

The author researched what others previously wrote concerning military

intelligence support to domestic law enforcement. The author found several writings

about the practices in the 1960s and early 1970s, but none of those works explored the

legal justification in depth for the decision to employ military intelligence assets in the

manner the Johnson and Nixon administrations used them. Therefore, the author

developed an outline on how to conduct the research that encompassed three areas—

37

historical and legal background, military intelligence capabilities, and domestic law

enforcement intelligence support requirements. These historical background events cover

the period from the Constitutional debates to the 11 September 2001 terrorist attacks in

New York City, New York, and Washington, District of Columbia. Concurrently with the

events are the legislation that affected domestic federal troop use initially, and then

military intelligence support. Federal case law concerning the Army’s activities

domestically in the1960s and 1970s, where military intelligence conducted domestic

support to law enforcement outside of any defined bounds, proved crucial to defining the

legal parameters by a court test. Most of the information already existed in the form of

federal law, case law, regulations, Congressional hearings and various texts on these.

Once the legal aspect was satisfied, then research focused on the military intelligence

capabilities that could legally be used inside the United States, and the law enforcement

intelligence support requirements.

Initial research covered the background events that shaped the present climate on

military intelligence activities in the United States. The author examined the

Constitutional issues surrounding early domestic federal troop use, circumstances leading

up to the passage of the Posse Comitatus Act, Army intelligence history from 1945, the

Rockefeller Commission Report, the Church hearings, and the Pike hearings. The

aforementioned topics are important as they form the basis of the Foreign Intelligence

and Surveillance Act (FISA) and Executive Order 12333. These hearings dealt with the

Army Intelligence Command, the Central Intelligence Agency and the Federal Bureau of

Investigation (FBI) domestic intelligence collection programs. They also covered the

FBI’s use for political purposes, as the wider impact fell on all elements of the

38

intelligence community, the bulk of which resides within the Department of Defense

(DoD).

Laws and orders governing the military in a law enforcement role interwove with

the historical events. The historical review covered the period in the 1880s when military

intelligence officially came into being, and the focus shifted to the intelligence support

aspect of that overall military support. Principle laws regarding this include the Posse

Comitatus Act, the FISA of 1978, the National Defense Authorization Act of 1989, the

Intelligence Reform and Terrorism Surveillance Act of 2004, and the U.S. A. PATRIOT

Act.

Next came a review and analysis of the regulations and laws to see what limits are

imposed on the military intelligence apparatus to provide intelligence support in a Title

10 status to law enforcement. Some of the documents regarding this are Executive Order

12333, and DoD Regulation 5240.1-R, DoD Directive 5143.01, Army Regulation 381-10

“U.S. Army Intelligence Activities”, and other applicable DoD Directives and regulations

identified during research. Most DoD directives have not been updated in over twenty

four years. So the author examined the impact on the present military intelligence support

environment domestically.

The fourth step identified the military intelligence capabilities under Title 10

authority that would first be of use in a domestic counter–narco–terrorism (CNT) effort,

counterdrug operations, and counterterrorism operations. This involved looking at the

intelligence assets, training and capabilities of military intelligence professionals. This

also entailed ensuring that the capabilities discussed to support law enforcement are

feasible, acceptable, and suitable based on the laws reviewed. This also bled over into the

39

next area of research, as law enforcement verified the suitability of resources to their

mission.

The fifth step determined the need of law enforcement requiring military

intelligence support to counterdrug, CNT, and counterterrorism operations investigations,

determining when and where to apply military intelligence capabilities, and to focus

intelligence preparation of the environment on the strengths and weaknesses of the

traffickers and terrorists. The author conducted interviews with supervisors from the FBI

Intelligence Division, a Drug Enforcement Administration (DEA) Special Agent In-

Charge (SAC), and a Director of the Office of National Drug Control Policy’s High

Intensity Drug Trafficking Area (HIDTA) program. The author chose the FBI as it has

statutory responsibility to investigate terrorism and terrorist plots within the United

States. The Kansas City, Missouri office possesses a Joint Terrorism Task Force and two

FBI intelligence groups within easy access to the author to discuss their role in

counterdrug, CNT, and counterterrorism operations, and the FBI’s needs for additional

support as identified by the 9/11 Commission Final Report. The author chose DEA as it

has the responsibility to enforce Title 21 of the United States Code concerning narcotics

and narcotics trafficking laws. The DEA SAC spoke at the Command and General Staff

College at Fort Leavenworth, Kansas, and agreed to a follow-up discussion regarding

military intelligence support to law enforcement. The SAC possessed extensive

experience in dealing with international drug trafficking organizations, and numerous

regional drug trafficking organizations with international ties. The author selected the

Director of the Midwest HIDTA in Kansas City, Missouri, as the Director chaired the

HIDTA intelligence committee for several years that dealt with intelligence policy issues

40

relating to law enforcement, and possessed keen insight on the use of military to support

law enforcement in counterdrug, CNT, and counterterrorism operations. These interviews

proceeded with discussion on how the agency used military intelligence support, what

they liked about it, and what they saw as issues. The author did not use a formal survey to

allow the law enforcement leaders freedom to cover what they thought important to the

thesis, and all contributors agreed to attribution for their thoughts.

The final step entailed determining what changes to law or policy are needed to

better facilitate the military to conduct intelligence support for law enforcement for

counterdrug and counterterrorism operations. Along with this, the author listed

recommendations on how military intelligence should be used in support of the inter-

agency for domestic counterdrug and counterterrorism operations in a Title 10 status.

Discussion of Methodology Feasibility, Suitability, Relevance and Source Credibility

The research methodology laid out here presented a systematic study of the topic

and provided a system of methods to develop the analysis of the information. The author

reviewed research papers and other theses published by the Combined Arms Center at

Fort Leavenworth, Kansas to see how others approached this type of project. The method

outlined here is consistent with most of those works. The events used for the background

are cited by both supporters and critics of the research topic as to why it should or should

not be allowed. The author validated the source credibility by using the actual public

laws, as well as examining books and articles and comparing them with the Senate

reports and regulations covering the same topics in the written works. Agency personnel

41

interviewed all possessed valid agency credentials from their agencies, and have

reputations within the national law enforcement community.


The results of this methodology of research and analysis should represent a

complete and unbiased look at the restrictions and capabilities of military intelligence in a

Title 10 status to provide intelligence support to law enforcement, as well as what law

enforcement desires is assistance from military intelligence. The analysis in Chapters 4

and 5 of the information discussed in Chapter 2 using the methodology cited here will

support the thesis of this work. The results will assist the senior military leadership in

both the active and reserve components to plan for the best support to the civilian

interagency as law and doctrine dictate.

42

CHAPTER 4

ANALYSIS OF LAW, EXECUTIVE ORDERS, AND REGULATIONS

Military intelligence in a Title 10 status can provide passive support domestically

utilizing many areas of its capability support to law enforcement and the interagency in

counter-narcotics and counter-terrorism operations. The purpose of this chapter is to

explore what the legal justification of this support is. To explore the legal justification,

this thesis covered major background events and the laws relating to the subject. The

results of this research will help to shape how military intelligence can support the

interagency, as mandated in the 2008 National Defense Strategy and identify potential

friction points or areas needing clarification.

Chapter 4 is organized into five sections:

Section I—Introduction

Section II—Background Events and Historical Precedence

Whiskey Rebellion

Tax Rebellion of 1799

Fugitive Slave Act through Reconstruction

Posse Comitatus Act

Section III—Intelligence

Military Intelligence Development

Military Intelligence Domestic Collection in the 1950s and 1960s

Congressional Hearings and the Foreign Intelligence Surveillance Act

Section IV—Modern Era

War on Drugs

43

9/11 and the 9/11 Commission Report

Executive Orders and DoD Directives

Regulations and Doctrine

Section V—Conclusion

Introduction

The roots of the use of federal troops in domestic situations date back to the late

1700s after the United States gained independence, when the Continental Congress raised

the question regarding the foundations that buttressed government authority.1 The

framers of the U.S. Constitution did not proscribe using federalized militia or Army as a

posse comitatus.2 Alexander Hamilton wrote about the need to call the military to aid the

civil magistrate in emergencies.3 The military was to serve as a backstop where the

civilian component was not able or willing to handle the situation, using common sense

and balance when doing so, and meant to encourage the populace to submit to the civil

authorities.4 The debate indicates that the Continental Congress understood that using the

military in domestic situations under certain circumstances was prudent and to be in

support of the civilian law enforcement, not independent of it.

Congress somewhat codified the ability to use troops as a posse comitatus in two

important laws: The Judiciary Act of 1789 and the Calling Forth Act of 1792. However,

Congress used vague language in each of these statutes. The Judiciary Act inferred the

president’s use of the military under section 27 “he shall have power to command all

necessary assistance in the execution of his duty.”5 The Military Act of 1792, also known

as the Calling Forth Act, specified that the military could be used to suppress insurrection

and enforce the laws of the United States when the opposition is too strong for regular

44

judicial proceedings to handle.6 The act also placed the militia on par with federal Army

troops, subjected the militia to federal regulations when used to quell insurrections, stated

that marshals shall have the same powers as sheriffs in executing the laws of the nation,

and “provided the federal marshal the power to use the military as a posse comitatus.”7

These acts set the legal framework to use military forces to subdue domestic disorders,

and underwent an important test in the course of the Whiskey rebellion.

Now that the legislative foundation for use of military force is laid, the defining

events that validated the legislation and circumstances leading to the Posse Comitatus Act

will be examined. This section is crucial in that those opposed to the use of federal troops

within the United States, and especially military intelligence capabilities, cite the Posse

Comitatus Act as justification to keep federal military troops from being used

domestically. Understanding the events, debates and outcomes of the those events, as

well as the Posse Comitatus Act and the circumstances that surrounded the legislation’s

passage, will help frame the debate on the use of military intelligence capabilities in a

Title 10 status to support law enforcement in counterdrug and counterterrorism

operations and investigations.

Background and Historic Events

Whiskey Rebellion

The Whiskey Rebellion and how the federal government handled it validated the

legal framework laid out in the Judiciary and Militia Acts. The discussions between the

founding fathers of the Constitution ensured that the use of the military in domestic

situations met the intent of what the Constitutional framers had in mind.

45

The origins of the Whiskey rebellion actually start in 1791 as Congress and the

Washington Administration debated how to raise revenue for the young republic. The

debate went deeper than the Executive Branch verses the Legislative branch, to the

philosophical beliefs of Republicans verses Federalists, and states’ rights verses national

rights.8 Along with this, Americans continued the resistance to taxes after the revolution

from their state legislatures, as well as before the revolution from the Monarchy.9 This

resistance was due to the English tax system, which possessed arbitrary powers to arrest

tax evaders and confiscate goods for back taxes without jury trials, and power to search

for tax valuations without the owner’s permission.10 The strategic effect of taxation was

offensive, as it gave the government power to examine personal property to be taxed.11

Inherent in this authority was the use of military to enforce compliance and the law.12

Congress sought to avoid direct taxation on goods, seeking to employ a

combination duty and excise “morality” tax on alcohol production .13 The tax passed

when the federal government agreed to assume all state debts from the War.14 Some

opposed a strong federal government, such as William MaClay of Pennsylvania, and

publicly described the tax as an attack on states and liberty.15 The tax set the stage for

major resistance to federal authority.

The Whiskey rebellion of 1794 gave the new government its first test of the

Judiciary Act and Calling Forth Acts. Farmers in Western Pennsylvania violently

protested a new excise tax on locally distilled whiskey. The local farmers saw this as both

an economic attack (how farmers chose to process and market their crops) and a

discriminatory tax (the populace of Scott-Irish descent commonly made and consumed

46

whiskey).16 When the government sought to collect the tax in the summer of 1794, the

local farmers responded by arson, burning the tax collector’s home.

These events caused bitter debate within the Washington Administration on the

use of force to enforce compliance. The debate focused more on how to suppress the

rebellion, not if to suppress the rebellion.17 The Federalists, led by Alexander Hamilton,

sought to use this incident to show that the new government could and would enforce the

law on its citizens.18 On the other hand, the anti-Federalists (Republicans) never called

for the federal government to be completely powerless to use military force in domestic

disorders.19 Edmund Randolph, the Attorney General, cautioned against over reacting

and stressed the backing of public opinion as crucial to any government action.20

Washington sided with Randolph’s logic, even while executing Hamilton’s plan.21 The

Washington Administration understood the strategic effects of using force to enforce the

law, or have the government collapse. The Washington Administration balanced this

view with needing public opinion behind the use of federal troops or that use of federal

troops would create more rebellion.22

When negotiations failed to peacefully end the rebellion, the citizens in western

Pennsylvania made preparations for armed resistance.23 This resulted in President

Washington sending 13,000 troops from three neighboring states and Pennsylvania to

restore order. This action established the federal government’s authority to use military

force to enforce the laws of the young nation, which ties to this thesis in that it

established the constitutional and legal foundation for military intelligence to support law

enforcement.24 The action was significant in that it had public support, important for a

young nation that just threw off what they perceived to be tyrannical military force used

47

to enforce tax collection. This had to be balanced with the knowledge that “conditions

surrounding the use of force can divide or unite a community, and undermine a

government.”25

In effect, the incident established the basis for using military force to enforce the

laws of the land. While initially intending only to use the militia of Pennsylvania, the

course of action proved fraught with obstacles, not least of which was the reticence of the

Pennsylvania governor to use his militia to subdue the rebellion.26 In the end, the militias

of four states, mobilized under what we now call Title 10 authority, marched into western

Pennsylvania, with the public’s backing, even though the rebellion died out before the

troops actually arrived.27 The President’s order to the forces charged to quell the rebellion

stated that once initial peace was restored, the military was to act in support of, not

independent of, law enforcement.28 It is clear from the text that when the military is used

to quell a domestic disorder, the military is to be subservient to the duly appointed law

enforcement in the affected area.29

The incident validated both the Judiciary Act and Calling Forth Act as appropriate

for the new nation in the way President Washington handled the incident within the

framework of these laws. In the 1795 update to the Calling Forth Act, Congress changed

the law so that the President did not have to notify an associate justice or district court

justice in advance of using military force to quell a rebellion or insurrection.30 In doing

so, Congress also showed its approval to the handling of the situation and the use of

military force.

The Congress understood the possibility of the Army running amuck, and inserted

strong language in the law to deter, and if not deter, to punish, abuses.31 This applies to

48

military intelligence support in that those who use military intelligence capabilities in a

domestic capacity illegally, including those within military intelligence units, face

criminal penalties for that illegal use.

The results of the Whiskey Rebellion and updates to the Calling Forth (Militia)

Act laid precedence for what the constitutional framers had in mind by having the

military support civil authorities within the United States. The incident set the precedence

of the military working in support of law enforcement, not independent of it. The debate

addressed the use of federal forces, or the National Guard in what is now considered a

Title 10 role, as opposed to the Guard being under state control, in this law enforcement

support role.

Tax Rebellion of 1799

President John Adams used this law to quell a tax rebellion in eastern

Pennsylvania in 1799. The Adams Administration imposition of a one year tax, passed

thru Congress, to finance a possible war with France precipitated this rebellion.32 The

major change in tactics between handling the Whiskey Rebellion and this rebellion was

the use of Regular Army troops along with the militia to quell the rebellion.33 However,

President Adams did not receive public praise for his handling of the situation. President

Adams, his War Secretary, and the Commanding General of the Forces that subdued the

rebellion did not fully develop and understand the situation to begin with, and

subsequently overreacted.34

Nevertheless, Congress did not register any complaints concerning the Adams

Administration’s handling of the rebellion that affected legislation. In fact, Congress in

1807 passed a law expanding the president’s ability to call upon all land and naval forces

49

in dealing with rebellions.35 The main impetus for this new law was James Madison’s

legal opinion written in 1806 that Regular military forces could only be used on

campaigns that targeted foreign countries, when President Jefferson sought to use federal

troops in a 1806 rebellion.36

This 1799 employment and subsequent congressional legislation codifying the use

of active duty federal troops in domestic disorders reinforced President John Adams’ use

of active duty troops in a domestic disorder in 1799. This congressionally legislated use

of troops domestically is the legal basis for military intelligence capabilities in a federal

control status (when they came into being) to support law enforcement in counter-

narcotics and counterterrorism.

Fugitive Slave Act through Reconstruction

The next major change to the use of military troops resulted from the Fugitive

Slave Act of 1850. The change was not so much the legislation, but the second and third

order effects of the legislation. The Act was to guarantee the return of slaves to their

owners if arrested and allowed the marshal to form a posse comitatus to facilitate the

slaves’ return.37 When citizens in Pennsylvania and Massachusetts refused to honor the

posse and release fugitive slaves, marshals and southern politicians lobbied the President

to use federal troops to enforce the law.

The changes started when Secretary of War Conrad established the Cushing

Doctrine in 1854.38 The Cushing Doctrine allowed for a federal marshal, unable to

execute his duty due to stronger opposition than he can handle, to enlist the armed forces

or militia into a posse comitatus.39 The Senate Judiciary Committee sided with the

Fillmore Administration’s Cushing Doctrine.40 The end result of this was that over the

50

next twenty-seven years, marshals somewhat routinely called on the military to be in a

posse comitatus, without having to go through the president to do so. This precedent prior

to the Civil War had repercussions in the reconstruction era afterwards.

After the conclusion of the Civil War and the assassination of President Lincoln

in April 1865, Vice President Johnson, a Southern Democrat from Tennessee, inherited

the responsibility for restoring the Confederate States to the Union. President Johnson

appointed many former confederates to administer the Southern State governments,

which gave the Confederates an opportunity to work within the system to limit the rights

of Blacks.41 President’s Johnson’s vision for the federal military troops was to gradually

cede control of the southern governments as the “reconstituted” civilian governments

organized, offering minimal interference unless requested by the state or local civilian

governments.42 However, this approach resulted in the Southern states passing “Black

Codes”, creating conflict with Army leaders attempting to implement federal law.43

President Johnson hindered the Army’s efforts to maintain order and provide justice to

the freed Blacks, which created conflict with Congress in December 1865.44

In 1866, Congress passed the Civil Rights Act, granting expanding rights to

Blacks, trumping the Black Codes passed in the South. This Act contained a virtually

identical clause listed in the 1850 Fugitive Slave Act of 1850 that stated the President

could use the military to enforce it.45 Also, by using mostly the same language as the

1850 Act, which white Southern Democrats cited in their demand to use federal force to

enforce the 1850 Act, the Republicans eliminated any legal or rational basis to arguments

the Southern Democrats could raise against the Civil Rights Act.46 The Civil Rights Act

still maintained that the military worked under the civilian law enforcement component,

51

placing responsibility with the federal courts and marshals, but eliminated the need for

the request to go to the President .47 This kept the earlier precedent of the 1850 Act and

subsequent use of the military by marshals.

The use of federal troops expanded following the proposal of the Fourteenth

Amendment. Matthews notes that General Order No. 44, issued in July 1866, expanded

the Army’s role further by allowing the Army to act in a law enforcement capacity when

local or state law enforcement fails to act in their capacity.48 The War Department

General Order No. 44 placed the military in a direct law enforcement role apart from

civilian authority, in that they were to do the civilian law enforcement authorities’ jobs

when those civilians abdicated their responsibilities.

Congress expanded military authority in the South by giving military commanders

the ability to remove any official derelict in their duties and had the Army enforce the law

while under military rule.49 This resulted in Republicans gaining control of the Southern

States, fulfilling the requirements to be readmitted to the Union, and thus allowing the

Army to finally turn over control to the civilian governments and release its enforcement

mission.50 However, Southern Whites formed the Klu Klux Klan, as well as other like-

minded groups such as the Red Shirts in Carolina, and resorted to terror campaigns to

intimidate Blacks and sympathizers to hinder racial equality. As Southern Republican

state governments requested the use federal troops to help them combat the Klan from the

President, President Johnson’s Attorney General reaffirmed that a federal marshal could

request the Army to be in a posse comitatus and that soldiers must follow the orders of

the marshal when serving in a posse.51 The Klu Klux Klan Act of 1871 greatly increased

52

the use of the Army in a posse comitatus role in an effort to stamp out the Klan in the

South.52

These laws affecting the Army’s role as separate from being subordinate to law

enforcement were unique in the history of the United States, in that the state and local

government refused to follow or enforce federal laws. Although the Army’s role lasted

several years, the Army eventually turned the law enforcement role back over to state and

local civilian control once the state and local governments would enforce law and order.

What this section of history shows is that political motivations in Congress greatly

influence the role that the Army plays in supporting, or during Reconstruction

supplanting, law enforcement. Hence, much of the criticism directed against the Army’s

role in supporting law enforcement is a result of a lack of understanding on the federal

legal statutes either permitting or prohibiting Army actions in a law enforcement support

role, as opposed to abuse of power by the Army.

The Klu Klux Klan Act of 1871 marked a turning point where Southern

Democrats began to make gains in federal elections, eventually winning Democrats a

majority in Congress in 1874. After the elections of 1876, Democrats possessed a firm

grasp on Congress and passed the Knott Amendment, which became known as the Posse

Comitatus Act.53

The Posse Comitatus Act

The Knott Amendment, otherwise known as the Posse Comitatus Act, as passed

in the 1878 Army Appropriations bill 20 Stat. L., 145, Chapter 263 on June 18, 1878

reads as follows:

53

SEC. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section. And any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.54

This was later codified as Title 18 United States Code (USC), Section 1385 and expanded

to include the Air Force. The Navy and Marines fall under a similar provision in Title 10,

USC, Section 375.55

The Act did not constrain the use of the military for civil disturbances,

counterterrorism and the like, but established parameters and guidelines for their use.56

The New York Times of the day lambasted the Congressional move as “a move against

economy and efficiency, as well as against principle and precedent.”57 The Posse

Comitatus Act eliminated a recent practice founded on opinion verses statutory or case

law.58 Title 10 USC, Subtitle A, Part I, Chapter 15, Section 333 is much clearer on giving

the president the authority to use federal military force to quell insurrections, civil

disturbances and as the president deems necessary to protect the peace.59 When

considering this, one can deduce that Congress did not intend for the Act to be overly

restrictive, but to restore what was precedent from the period of the country’s founding to

about 1850, that the request for use of the military in a law enforcement role must go to

the president to approve.

As listed out in the preceding sections, the military was reduced by Congressional

fiat to be an on call posse for federal marshals. The Fugitive Slave Act did remove the

committing of federal troops for domestic insurrections from Presidential responsibility,

54

as clearly the Fugitive Slave Act went against what the founding fathers and

congressional legislation of the late 1700s and early 1800s envisioned. While ostensibly

written to keep Army soldiers from compulsory law enforcement service in the South, a

plain observation of the circumstances indicates that Southern politicians did not like

being on the receiving end of the policy they enacted through the Fugitive Slave Act.60

Congress did not vote to preclude the use of troops if authorized by the president or

Congress, as the military was used at least fifty times after the Posse Comitatus Act was

signed into law, mostly dealing with quelling violent labor strikes.61 The president

employed troops to quell riots and civil disorders in over 200 instances for the period

1795 through 1995.62 The Posse Comitatus Act does NOT apply to the following:63

• Applies only to the Army and Air Force.

• Does not apply to the Navy and Marine Corps. [However, the Department of Defense has consistently held that the Navy and Marine Corps should behave as if the act applied to them.]

• Does not apply to the Coast Guard, which both an armed force and a law enforcement agency with police powers.

• Does not apply to the National Guard in its role as state troops on state active duty under the command of the respective governors.

• May not apply to the National Guard (qua militia) even when it is called to federal active duty (Title 32 status).64

• Does not apply to state guards or State Defense Forces under the command of the respective governors.

• Does not apply to military personnel assigned to military police, shore police, or security police duties.65

• Does not apply to civilian employees, including those who are sworn law enforcement officers.

• Does not prevent the President from using federal troops in riots or civil disorders.

The Posse Comitatus Act did not prevent the use of federal troops if properly requested

and the president approved the mission.66

55

The Secretary of War George McCrary in 1877 offered the following analysis

regarding the Posse Comitatus Act: “[The Act should be] repealed, or that the number of

cases in which the use of the Army shall be ‘expressly authorized’ be very much

enlarged.”67 Several laws passed by Congress allow specific exceptions to the Posse

Comitatus Act beginning with the 1903 Dick Act. Some of these laws that further widen

the scope of use for the military under the Posse Comitatus Act are discussed later in this

work. The Dick Act renewed the president’s ability to federalize the National Guard if

regular Army troops were not available to quell insurrection and execute the laws of the

union.68 In effect, this law began the fulfillment of what George McCrary surmised

following the passage of the Posse Comitatus Act.

The Posse Comitatus reset the legal landscape to pre–1850 standards, which

means the President is the one to commit federal troops to domestic situations. Congress

did modify this legal precedent by allowing itself to grant exceptions to the president’s

authority in committing federal troops domestically. However, this is the same rational

behind the 1850 Fugitive Slave Act, to circumvent the president’s responsibility and

commit forces without his order. In this manner, the Posse Comitatus Act, while

removing a carte blanch for law enforcement use, left the door open to Congressional use

of troops in domestic situations.

Intelligence

Military Intelligence Development

Prior to World War I and during the interwar period, all commanders were

expected to serve as the own intelligence officers.69 The first official intelligence

divisions began with the Navy, which instituted an intelligence department in 1882,

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followed by the Army in 1885, which began the Division of Military Information.70 In

World War I, the Army formed the Military Intelligence Division (MID).71 The fate of

the Army MID ebbed and flowed with the wars, growing in anticipation or because of

conflict, and shrinking when the conflict ceased. The Korean conflict demonstrated the

need for a sustained intelligence apparatus to monitor the Communist threat.72

While the military intelligence organization as a whole went through several

expansion and contraction periods, it still managed to get heavily involved in domestic

collection, aside from the Posse Comitatus Act. During World War I, military

intelligence focused domestically on the counterintelligence mission, as the War

Department worried about the immigrants from Europe with ethnic backgrounds of the

Axis Powers, racial tensions, and the antiwar movement.73 Civil authorities lacked the

capability to identify, track, and assess these perceived threats, so the Army built a major

counterintelligence program to perform this mission within its ranks and encouraged

soldiers to spy on each other.74

As the Military Intelligence branch expanded, it divided missions among

numbered branches. MI–3 assumed the role of counterespionage in the military, while

MI–4 focused on civilian based espionage, labor disputes, racial unrest, and immigrant

alienation in the eastern cities, which compelled MI–4 to actively liaison with civilian

law enforcement entities.75 MI–4 still lacked the manpower to fully investigate potential

threats, leading MI–4 to assume control over the American Protective League, a civilian

vigilante spy group created by the Department of Justice, whose mission was to uncover

spies.76 This combined element under MI–4 allowed the Army MID to provide

intelligence to federal troops deployed in the United States to keep key materials moving

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and industry running for the war effort.77 This MI–4 branch of Army intelligence is the

first dedicated domestic military intelligence support apparatus, and shaped intelligence

support to domestic law enforcement through the early 1970s.

The Army did not work in support of civilian authorities during this period. The

Army worked with the Department of Justice in a limited manner, only concerning the

American Protective League. The War Department under Newton Baker suspended the

Posse Comitatus Act in May 1917, the justification being that the nation needed a steady

stream of material for the World War I war effort.78 Although Army leaders were

instructed to “be in concert with the actions and views of duly constituted civil

authorities,” the evidence indicates this did not always take place.79 This directive seems

to indicate that Secretary Baker understood the military’s role as a support to law

enforcement, not a supplanting of it. However, it appears that his understanding did not

convey to the military leadership of the time. As discussed in Chapter 5, law enforcement

today understands and would welcome military intelligence support under the guidelines

Secretary Baker espoused.

The War Department authorized military commanders to arrest civilians, which

often drew on the MID investigative data for intelligence of the area instead of the

civilian authorities, the arrests being in spite of the Ex Parte Milligan Supreme Court

doctrine of 1866.80 During 1918, MID took over the military censorship program.81

MID’s investigations did not solely focus on law enforcement. MID played labor

organizations against rival organizations, so the labor organizations spent more time

battling each other than interfering with the material production.82 Army MID was

deliberately anti-radical and anti-labor, which gave the impression that all Army troops

58

were the same.83 Army MID attempted to set policy in the labor movement by meddling

in its attempts to organize. Consequently, the second order effects of this posture may

have caused, or at least contributed, to intelligence problems in later years for the Army.

These activities did not conform to Secretary Baker’s guidance, and therefore removed

the Army from the civilian leadership umbrella.

After World War I, the focus turned to a concern of Bolshevism’s spread into

Western Europe and potentially the United States. Where during the war many Army

officers disliked domestic intervention, after the war during the Red scare, they came to

view domestic intervention as necessary to protect the nation and the military.84

However, this new “willingness” to intervene in domestic disorders brought accusations

from labor groups that the Army was only playing on public fears of Communism to

maintain its funding levels.85 MID’s perception of labor was that it was under the control

of foreign radicals and their philosophies.86 This perception is evidenced by MID’s

intelligence reports on the Seattle shipyard strike, in that MID reported the speeches were

plainly radical.87 However, MID’s intelligence on the “suspected” radicals was mostly

based on hearsay, not hard facts or corroborated intelligence.88 Note that intelligence

must be corroborated, which it appears the MID failed to do, based on the historical

record. This failure, and the possible lack of self or external analysis to identify and

correct this deficiency, set the MID up for problems in later years.

Army intervention was not confined to labor disputes, but also racial disputes.

Army MID agents worked the crowds in civilian clothes to gather information on the

rioters for the commanders of the federal forces employed in riot duty.89 MID amassed a

large database of information on racial disturbances and blacks in general during the

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1919 to 1921 riots.90 However, MID’s assessment of the racial situation shows its own

racist bias, calling the situation a negro subversion, a work of radical labor and socialists,

verses blacks wanting equality as promised by the Civil Rights Act of 1865.91 This only

reinforces the possible lack of corroboration, and suggests that MID played more to

public fears than actual intelligence. In this the MID failed to adequately support law

enforcement with good intelligence, and provided questionable support to the Army.

Although MID did have active liaison and information sharing with law enforcement, its

bias, and uncorroborated reporting did not help law enforcement to adequately identify

threats for investigation.92

Despite the biased intelligence provided by MID, the Army as a whole performed

with fairness to both sides of the dispute, whether labor or racial.93 Thus, the age of

active military intervention, especially military intelligence collection against United

States Civilians, greatly decreased until World War II following the rigid controls placed

on it by the Constitution and Congress.94

With the reimplementation of the Posse Comitatus Act in late 1921, Army MID

sought to assist with contingency plans for domestic insurrection, including acquiring

foreign military plans to handle insurrections in their respective countries to use as a

guide.95

The FBI, Army MID and naval intelligence all signed an agreement on the

responsibilities of collection on United States citizens in June 1940, and again in 1942

and 1949, to limit the virtual carte blanche military intelligence had in World War I

investigations on United States citizens.96 While the FBI had the lead on domestic

intelligence, the military was allowed “to investigate civilians employed or controlled by

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the military in the continental United States and all civilians in the Canal Zone and the

Philippines.”97 To accomplish its part, the Army MID greatly expanded its Corps of

Intelligence Personnel (CIP), where it focused on military personnel, developing an

extensive “spy network” of operatives in military units that would file monthly reports on

possible subversive activity.98

The military intelligence community largely stayed out of supporting labor and

racial interventions during World War II.

The National Security Act of 1947 combined the Department of War and the

Department of the Navy, and birthed the Department of the Air Force from within the

Army Aviation Corps, all under the umbrella of the newly created Department of Defense

(DoD). More significant to the military intelligence community, it created the Central

Intelligence Agency (CIA) and included the DoD intelligence community into the whole

of government intelligence community. The National Security Act of 1947 defined a

United States person and law enforcement agency (LEA).99 Both definitions govern the

convergence of foreign intelligence information and criminal investigation information

and the corresponding exchange of that information between the intelligence community

and the Department of Justice.100

Furthermore, the National Security Act of 1947 laid out some specific limitations

on the use of military forces in domestic roles. Finally, the National Security Act of 1947

set up a framework for interagency support.

In addition to the CIA, the National Security Agency (NSA) and the Defense

Investigative Agency (DIA) came into being from 1947 to 1961 as a result of the Cold

War.101 The CIA coordinated federal intelligence activities, as well as produced and

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disseminated intelligence while the NSA intercepted foreign communications and

coordinated cryptographic operations.102 The National Security Act of 1947 also defined

the intelligence community as including “the intelligence elements of the Army, the

Navy, the Air Force, the Marine Corps, the Federal Bureau of Investigation, the

Department of the Treasury, the Department of Energy, and the Coast Guard.”103 This

law set the military intelligence community as part of the overall intelligence community,

and made laws governing the intelligence community applicable to the military

intelligence community as well. However, the laws which created the CIA and NSA also

expressly prohibited them from law enforcement roles, internal security functions, and

collection on domestic communications.104

The military services and the FBI agreed to share with each other the information

each party had gathered.105 This sharing of gathered information had the net result of

circumventing the Delimitations Agreement, and laid the groundwork for more blurring

of the responsibilities of the Agreement. An example of this occurred during the mid

1950s, where commanders inside the United States had to forward to the Army Chief of

Staff for Intelligence and Continental Army Command trends and conditions of possible

civil unrest.106 These reports included information on civilians, organizations, leadership

and communications.107 However, the lack of detail on the gathering of this information

implies that Army Intelligence was collecting the information independent of law

enforcement, a clear violation of the intent of the founding fathers in that the military was

to be subordinate to law enforcement when used domestically.

The National Security Act of 1947 identified some restrictions on military support

to law enforcement. First, it set boundaries on the DoD intelligence components to only

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conduct independent collection on non-U.S. persons and only outside the United

States.108 However, it did allow for law enforcement to request DoD intelligence assets to

collect on foreign nationals, as Joint Task Force–North in El Paso, Texas, does with

military intelligence personnel collecting information along the U.S.–Mexican border and

associated boundary waters today. Second, the Act prohibited members of the armed

forces from directly participating “in arrest or similar activity” of a U.S. person.109

The National Security Act of 1947 foresaw the need for interagency coordination.

Section 113 allows for employees of an intelligence agency to work an assignment at a

different intelligence agency for up to three years; and this included DoD intelligence

personnel.110 This relates to today with the emphasis in Joint doctrine on supporting the

interagency. The 9/11 Commission, formed after the terrorist attacks in 2001, called for

increasing the analytical capacity of domestic intelligence agencies.111 With the analytical

capacity resident within the military, it is prudent for military intelligence professionals

to fill the shortages identified by the 9/11 Commission.112 The basis for the doctrine as

well as the 9/11 Commission recommendations can be linked back to the National

Security Act of 1947, Section 113.

Military Intelligence Domestic Collection in the 1950s and 1960s

The Korean conflict, unlike the two previous wars, did not usher in a large scale

operative program to root out communists in the military.113 Army intelligence collection

on U.S. civilians did not happen until the racial integrations standoff in Little Rock,

Arkansas during September 1957.114 Army staffers, presumably intelligence personnel,

during 1958 also collected information on school integration issues in Arkansas and

Virginia.115 No hindrance to the military collection of intelligence on civilians existed in

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Little Rock, even though the practice violated the Delimitations Agreement with the FBI

and the Army Strategic Capabilities Plan of June 1960.116 As a result, the next racial

disturbance in the fall of 1962 at Oxford, Mississippi, did not show evidence of military

intelligence personnel collecting on the civil rights marchers, although Army Intelligence

was aware of the planning and operations.117 However, General Abrams decried after the

Oxford intervention not only the lack of planning and coordination between the military

and civilian law enforcement, but the lack of good situational intelligence on the

problem.118 In fact, in planning and supporting the next few racial incidents, the Army

took pains to ensure they were operating with the Department of Justice as the lead

civilian LEA.119

After several racial incidents between the fall of 1962 and spring of 1963, the

Army began to evaluate General Abrams recommendations on prior planning,

coordination and intelligence development.120 General Abrams expressed a real need for

commanders to have accurate intelligence and analysis on belligerents, and recommended

that the FBI be in the lead for this.121 The Joint Chiefs of Staff formalized a riot control

contingency, Operations Plan 563, in July 1963.122

When Army intelligence collection on U.S. civilians began, it initially was limited

to open source and other government agency information.123 The plan did allow for direct

emergency intelligence collection to develop the immediate situation, but reserved

counterintelligence collection to Commander Continental Army approval after

consultation with the FBI.124

The Army Intelligence Command, reorganized in 1965, housed the database of all

counterintelligence and criminal investigations previously conducted by the military, as

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well as a pointer index to FBI and local police department investigative files.125 A result

of this access to civil disturbance information led the Army Intelligence Command to

produce daily intelligence summaries on civil disturbances in 1965.126 This began a

process where the original mission and instruction gradually violated the Delimitations

Agreement and National Security Act of 1947.

This violation happened in part due to the realization that when troop commitment

to a particular disturbance was imminent or occurring, it was too late to gather and

analyze intelligence data needed by those troops to deploy, as the existing civilian

intelligence agencies rarely possessed needed intelligence data.127 Much of the issue

devolved from the FBI itself, where the Director, J. Edgar Hoover, became much less

cooperative with Army counterintelligence concerns in the 1960s.128 The FBI lacked the

organizational capacity and ability to produce domestic intelligence useful to the Army in

civil disturbances, as well as the FBI not having minority and student aged males to

infiltrate radical black and student groups.129 Although the civilian agencies did not

adequately produce domestic intelligence, civilian and military leaders sought to expand

the military collection of intelligence to gain the required information, as domestic

intelligence production was not a priority to the FBI.130

Local Army commanders used counterintelligence personnel in the early 1960s

until the Army Intelligence Command was organized after the Watts riots in 1965.131 The

Army Intelligence Command developed a plan to provide counterintelligence support

after federal troops deployed to a civil disorder, but found it needed to collect in likely

civil unrest areas before troop deployment to be useful to commanders.132 Army

Intelligence Command developed a new plan to collect in likely unrest areas, and

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implemented this plan or its successors twelve times by the summer of 1966.133 This

employment of counterintelligence personnel allowed the Army to build models and

procedures to meet similar marches and demonstrations across the country.134

From 1967 onward the Army intelligence community collected much greater

intelligence on the U.S. population. This started with the Deputy Secretary of Defense

Cyrus Vance, who tasked the Army to conduct intelligence preparation of the

environment on major cities were civil unrest was possible.135 This resulted from the

assessment of the Detroit riots in the summer of 1967.136 All this collection covering both

racial and anti-war threats greatly expanded the intelligence database of the Army

Intelligence Command.137 Indeed, President Johnson named an eleven member panel, the

Kerner Commission, to look at the Detroit riots and make recommendations on how to

improve the federal response.138

The Kerner Commission Report recommended that background packets be

developed on civil leaders, which the Army resisted as unconstitutional, since neither the

president nor Congress expressly authorized the activity, and it was not in support of and

directed by civilian law enforcement.139 However, the Commission report played into the

expansion of intelligence activities nonetheless in the late 1960s, as Johnson

Administration officials sought to gain better intelligence on the civil unrest building

throughout the period.140

The fallout from the assassination of Dr. Martin Luther King, Jr. in 1968 brought

the formation of civil disturbance units to the Counterintelligence and Analysis

Branches.141 Additionally the Department of the Army greatly expanded the intelligence

requirements beyond the scope of the Army Intelligence Command’s ability to collect by

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liaison with the FBI and overt means.142 This Department of the Army tasking beyond

the Army Intelligence Commands legal ability forced other Army intelligence elements,

including the Army Security Agency (ASA) and tactical counterintelligence units, to

collect on domestic targets and building databases on their findings in violation of the

Delimitations Agreement and the National Security Act of 1947.143 An example of this

occurred in Washington, D.C., between November 1967 and April 1968, where Army

counterintelligence personnel covertly infiltrated the demonstration leadership.144 In

addition, the ASA, directed by the Department of the Army, listened in on the civilian

communications of the police, taxi, amateur radio, and citizen bands, despite the ban on

the use of the ASA domestically.145 In subsequent marches during the month following

Dr. King’s assassination, the Army Intelligence Command worked with a host of federal

and local law enforcement entities to monitor the movement and activities of the

marchers.146 However, by 1969 the Army Intelligence Command was doing independent

collection on radical antiwar and racial groups to uncover military subversion, as the FBI

abdicated its responsibility to do the mission on perceived “safety” grounds.147 The result

is that Army Intelligence crossed the line and broke the law, since Congress did not

authorize either the collection of information on U.S. citizens or the data basing of that

information.148 In doing so the Army moved out from under the support to law

enforcement role, and violated the due process rights of the citizens they collected

information on.

The Army did not act independently of civilian authority, as it was directed by the

Kennedy, Johnson, and Nixon Administrations to gather the data. However, it did not

conduct a sizable portion of intelligence collection under the direction of the civilian law

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enforcement authorities, most notably the FBI, per the Delimitations Agreement. While

one could argue that since the Department of Justice was involved, the intelligence

community did act under the supervision of civilian law enforcement. However, the

intelligence community still violated federal law as it moved away from law enforcement

support to independent collection on U.S. citizens.

Congress passed Public Law 90-331, granting exception to the Posse Comitatus

Act for the military to support the Secret Service in protecting the President, Vice

President, and major presidential candidates if the candidates requested federal

protection.149 As a result, Army intelligence, along with many other military functions,

supported the Secret Service during both the Republican and Democratic National

Conventions in 1968.150 This continued into 1969 as well, as Army intelligence supported

the FBI in collecting intelligence on anti-war protesters.151

During the first year of the Nixon Administration senior defense leaders began to

question the Army’s domestic collection activities. However, their questioning did not

readily translate into changes to the Army collection effort, and in some cases expanded

it during 1969.152 Memoranda between the Department of Justice and the Department of

the Army in 1969 sought to shift the collection burden back to the FBI.153 However, the

Interdepartmental Action Plan for Civilian Disturbances failed to lift or reduce the burden

on Army Intelligence in the domestic intelligence role.154 Even the outgoing Under

Secretary of the Army David McGiffert saw that the Army might develop intelligence

activities beyond the scope needed for civil disturbance support, and stated this via

memorandum to the Vice Chief of Staff.155 Nevertheless, a lawsuit filed by the American

Civil Liberties Union in 1970 accusing the Army of spying ultimately exposed the

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program to public scrutiny and political backlash, effectively ending the independent

collection on U.S. citizens.156

The use of Army intelligence during the 1950s and 1960s by political leaders

increased to the point that the Army broke the law in collection on U.S. citizens. This was

partly due to lack of civilian law enforcement leadership to take responsibility for the

mission, a mission that played to the military’s prejudices, and a lack of Congressional

oversight to ensure that support authorized by the National Security Act of 1947 was not

abused. The Army, being subservient to civilian leadership, relies on that civilian

leadership to ensure it does not get tasked to perform beyond its legal boundary. Civilian

governmental leadership’s failure to provide effective and specific direction, oversight,

and accountability opened the door for abuse as military leadership focuses on

accomplishing the mission. The public’s perception of the misuse of the military in a

civilian law enforcement role fueled the mistrust of the military as well as big

government due to the government’s involvement in subverting the anti-war movement,

along with racial and labor tensions. This set the stage for major backlash in Congress as

these abuses came to light.

Congressional Hearings and the Foreign Intelligence Surveillance Act

In 1970 a former Army intelligence captain, Christopher Pyle, publicized the

Army’s domestic intelligence collection activities.157 Pyle wrote a dissertation on Army

Surveillance and concluded the effort evolved from bureaucratic processes verses being

driven from the top or a deliberate attempt to skirt around legal obstacles.158 This resulted

from a failure of the FBI to provide adequate intelligence support per the Delimitations

Agreement.159 This disclosure proved to be a watershed event in that it was the beginning

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of several disclosures on the government’s intelligence apparatus collecting information

on legal civilian activities, as well as covert collection on potentially illegal activities of

political groups and non-political groups advocating agendas. Following disclosures

would encompass the FBI, the CIA, and Watergate, and resulted in the Ervin, Nedzi,

Church, and Pike Congressional Committees hearings.160 However, as the Nedzi

Commission did not produce any reports and disbanded for internal political reasons, it

will not be discussed in this thesis.161

Pyle characterized the Ervin committee hearings as intending to protect the

military from being politicized and drawn into domestic politics.162 To that end, Senator

Ervin referred to the hearings as “Computers, Data Banks and the Bill of Rights,”

commonly referred to the Ervin Committee, verses Army Surveillance hearings.163

However, Senator Ervin also viewed the Army domestic surveillance program as part of a

much larger assault by an activist government on the constitutional rights of individual

Americans.164 The Treasury Department monitored what books Americans checked out

at libraries; Secret Service tracked who wanted personal contact with high government

officials or attempted to embarrass the President; the Department of Health, Education

and Welfare maintained a list of scientists who opposed the Vietnam War; and the Postal

Service (later found to be the Central Intelligence Agency (CIA)) that illegally opened

the mail of individual Americans.165 While Senator Ervin first concluded the Johnson

Administration developed the Army Surveillance program, the Senator understood during

the Watergate hearings that the Nixon Administration expanded the program.166

The Ervin Committee brought to light some outlandish Army surveillance acts.

The more bizarre ones included infiltrating a church Youth group and requesting that

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high school and college faculty pass names of individuals considered “potential trouble

makers” to the Army.167 According to the Hearings, the Army conducted purely political

surveillance as well, such as elected officials and bodies that either disagreed with the

Vietnam War or investigated the race riots of the 1960s.168

The Nixon Administration admitted to limited abuses in the overall federal

domestic program through the Department of Justice witness, William Rehnquist.169

Senator Ervin’s Committee uncovered the basic issue of how easily a secret domestic

surveillance system could grow beyond constitutional limits, especially when it was not

subject to Congressional oversight.170

The Ervin Subcommittee did not produce a final report and failed to produce any

legislation to curb the domestic spying programs of either the Army of Justice

Department.171 However, it did expose the Army as independently collecting intelligence

on civilians, a violation of what the founding fathers envisioned when writing the

Constitution and laws up to the Civil War. In a limited number of instances civilian law

enforcement requested the Army’s assistance in the collection of information, but these

requests did not have presidential or Congressional express authorization. Therefore,

these requests laid outside the scope of the Posse Comitatus Act or exceptions authorized

by Congress to the Posse Comitatus Act.

The Ervin Subcommittee hearings impacted the military intelligence’s role in

support of domestic law enforcement as it prompted some civilian leaders in DoD to look

at the Army’s domestic intelligence activities and place some curbs on them. The

hearings caused the Army to begin destroying some of its domestic databases, albeit in an

effort to cover up the extent of the domestic spying operation.172 In addition, the DoD

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issued new guidelines that called for the military to rely on Department of Justice

information for its needs to prepare for civil disturbances, halting the Army’s

independent collection against American civilians.173 In light of the lack of express

authorization by the President or Congress, these actions were fitting and began the

reigning in of military intelligence support to domestic law enforcement, even if not

completely adherent to the Congressional intent against domestic military intelligence

databases.

The next round of investigation into intelligence violations by the military came

from the Rockefeller Commission, appointed by President Ford and chaired by his Vice

President, Nelson A. Rockefeller, in January 1975.174 While the Commission’s focus was

the CIA, other related activities in other departments also came within the purview of the

commission in an ancillary fashion.

For the most part, the CIA complied with federal law and statutory authority.175

Where the CIA violated federal law of its own accord, the Commission admonished the

CIA to adopt more stringent controls to prevent recurrence.176 The Commission affirmed

the CIA and inferred approval of other intelligence components with assisting state and

local law enforcement authorities on new techniques, ideas, and equipment, as long as it

did not involve CIA personnel in a law enforcement role.177 Along with this, it affirmed

the coordination, production, and sharing of intelligence with other federal state and local

authorities, as long as the non-CIA intelligence is kept out of the CIA databases.178

This guidance is applicable to the military intelligence apparatus as well, as

Senator Ervin’s Committee sought to remove non-military related intelligence from DoD

systems. The Rockefeller Commission recognized that civilian law enforcement,

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including the FBI, did not have the requisite analytical capability that the CIA and

military possessed.179 Therefore, it did not fault the analytical assistance provided by the

CIA and military. While the Commission did recommend that the Department of Justice

develop an analytical capability, it did not recommend that the CIA or military stop

providing analytical assistance, nor limit military coordination with law enforcement, as

the Commission recommended a deputy of the CIA be a military officer.180 Clearly the

commission expected the CIA and DoD to collaborate on intelligence, so it is logical to

assume the recommendations for the CIA to operate within statutory authorizations also

apply to the military.

The House Committee formed under Otis Pike and set about to examine the

effectiveness of the CIA and is costs.181 The Pike Committee hearings did not have a

domestic intelligence collection focus so will not be covered in depth here. While the full

House voted not to release the Pike Committee report without Presidential certification of

sanitization, one of the committee members or staff members leaked the entire report to

the New York Times and a European paper.182 Aside from not having the Pike

Committee report officially released, the main recommendation of the Pike Committee

was to establish a standing committee on intelligence, which the Church Committee also

made.183

The Senate Committee led by Frank Church ran concurrently with the Nedzi and

Pike Committees in the House and produced the only officially released report

concerning the intelligence community’s activities. The Church Committee’s findings

concerning the CIA closely resembled that of the Pike Committee, and did not mention

much about the CIA and domestic surveillance, so they will not be covered here. The

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section of the Church Committee that pertains to this thesis concerns the military’s

involvement in domestic surveillance. The NSA activities also bear on the military, as the

NSA took responsibility for the military cryptographic functions in 1952.184 Since the

Army Security Agency still maintained an electronic collection capability, the NSA

review has an ancillary effect on Army electronic collection activities domestically.

The Church Committee found that the military service’s intelligence departments

from about 1967 on “were called upon to provide extensive information on the political

activities of private individuals and organizations throughout the country.”185 The Church

Committee found that prior to 1967 the Army gained most of its intelligence from passive

sources such as LEAs, the FBI, and the news media, instead of collecting the information

with counterintelligence personnel, which is considered an active source.186 As the

number of riots increased in the late 1960s, the Army began to collect more information

on potential riot locations itself, predominately at public gatherings (although in a covert

status), and maintained a database of this information for potential federal troop

deployments.187 While the Church Committee declined to imply that Title 10, United

States Code, Sections 331-334 authorized the military to collect information on American

citizens, the U.S. Supreme Court held a different view.188

The federal case Laird v. Tatum concerned the plaintiff’s claim that the existence

of an Army intelligence collection and subsequent database on American citizens had a

chilling effect on the free speech of the persons in the database.189 The U.S. Supreme

Court held in a five to four decision that “the mere presence of this [Army] data-

gathering system [containing information on American citizens] does not show justiciable

74

controversy on the basis of the record in this case.”190 In making its decision, the Court

held:

In performing this type function, the Army is essentially a police force or the back-up of a local police force. To quell disturbances or to prevent further disturbances, the Army needs the same tools and, most importantly, the same information to which local police forces have access. Since the Army is sent into territory almost invariably unfamiliar to most soldiers and their commanders, their need for information is likely to be greater than that of the hometown policeman.

No logical argument can be made for compelling the military to use blind force. When force is employed, it should be intelligently directed, and this depends upon having reliable information—in time. As Chief Justice John Marshall said of Washington, 'A general must be governed by his intelligence and must regulate his measures by his information. It is his duty to obtain correct information. . . .' So we take it as undeniable that the military, i.e., the Army, need a certain amount of information in order to perform their constitutional and statutory missions.191

The Court also recognized that the Army collected most of the information from news

media, circulated publications, and civilian LEAs.192 The information the Army collected

by attending public meetings, including names of people, organizations, speakers and

topics and attendance, did not constitute illegal or unlawful surveillance activities, as any

news reporter could and would do the same to gather similar information.193 The Court

cited several cases where the justiciable harm met the threshold, but noted that the

“chilling effect” in these cases was much clearer than in Laird v. Tatum.194

The dissenting minority took issue of militia verse federal forces as written in

prior legislation.195 However, dissenting opinion did not address that in practice the

federal forces were used like a militia for 170 years, but made the argument that the

practice of using federal troops as a militia is illegal. In addition, it recognized Title 10,

U.S.C. Sections 331-334, but declared these statutes are insufficient to warrant a military

domestic surveillance program.196 Laird v. Tatum did not cite the electronic surveillance

activities of the military.

75

This case defined that passive measures performed by the military, such as open

source collection and sharing information with law enforcement via liaison is legal. The

Court plainly stated that the Army must be allowed to prepare for a deployment

domestically and needed accurate intelligence to make those preparations.197 Databases

do not infringe on the rights of citizens, nor do they show justiciable arm. One other court

case also bore on the use of the military in support of law enforcement.

In the winter and spring of 1973, members of the American Indian Movement

(AIM) seized Wounded Knee, Pine Ridge Indian Reservation, South Dakota, and held it

in a standoff with law enforcement for over two months.198 The National Guard of four

states provided reconnaissance, equipment and the soldiers to maintain the equipment,

while the Department of Defense placed the Guardsmen on temporary federal status so

the Guardsmen could operate on the federal reservation.199 The Army provided planning,

advisors (in civilian clothes), and communications to support the federal LEAs.200 Once

the standoff ended, the defense attorneys for AIM accused the government of violating

Posse Comitatus through the support they provided to law enforcement.201 The Federal

Court for the district of South Dakota issued its ruling on the matter 7 April 1975.

The Court found that the support provided at Wounded Knee did not violate the

Posse Comitatus Act, notwithstanding any use of troops for active enforcement of law.202

The Court cited Congressional legislative history and found that Congress did not intend

to prohibit use of military material or equipment by civilian law enforcement in civil

disorders, and cited the Economy Act of 1932 as additional proof of this.203 The Court

went further to state that:

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Congress did not intend to make unlawful the involvement of federal troops in a

passive role in civilian law enforcement activities. Other courts have made the same

distinction in construing the clause 'to execute the laws.' In Burns v. State, 473 S.W.2d 19

(Tex.Crim.App.1971), the Court held that assistance provided by military criminal

investigators to law enforcement officers did not violate 18 U.S.C. § 1385.204

The Court went on to define both the active role that is illegal under 18 U.S.C. § 1385

and the passive role allowed by this same statute:

[Active Role -] Activities which constitute an active role in direct law enforcement are: arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities.

[Passive Role -] Activities which constitute a passive role which might indirectly aid aerial photographic reconnaissance military personnel under orders to report on the necessity for military intervention; preparation of contingency plans to be used if military intervention is ordered; advice or recommendations given to civilian law enforcement officers by military personnel . . .; military personnel to deliver military material, equipment or supplies, to train local law enforcement officials . . .; aerial photographic reconnaissance flights and other like activities. Such passive involvement of federal military troops which might indirectly aid civilian law enforcement is not made unlawful under 18 U.S.C. § 1385.205

This ruling is nested within the Supreme Court ruling in Laird v. Tatum, in that it

defined further what passive support the military could provide. Based on the historical

references and definitions laid out by the federal circuit court and U.S. Supreme Court,

military intelligence support to civilian law enforcement is authorized in the following

missions: analysis, assessments, translation, aerial reconnaissance (unmanned aerial

vehicle support), intelligence training, law enforcement database mining (law

enforcement owns the information in the databases, which are kept at the LEA),

collection planning, and execution of the passive measures of the collection plan once

law enforcement obtains proper legal process (if needed).

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The Church Committee took up the issue of the Army monitoring radio

transmissions inside the United States. In this the Committee compared the Army mission

of collection, jamming and deceptive transmission to the 1934 Communications Act,

Section 605, and noted that publication of intercepts is a crime.206 The Committee looked

at four such incidents where the Army Security Agency (ASA) monitored civilian radio

transmissions. All the incidents where the ASA monitored civilian radio communications

laid outside the law enforcement support.

The Church Committee then examined the military’s investigation of groups it

considered threats to either military personnel or installations and covered both domestic

and foreign investigations that involved American citizens.207 The Committee concluded

that no express statutory authority exists for the military to investigate persons or groups

considered as threats to military personnel or facilities.208 The Committee recognized that

DoD Directive 5200.27 exempted “threats” from its prohibition on collection against

American citizens, but lamented the DoD regulation did not sufficiently define

“threats.”209 It did accept that local commanders had the authority to investigate U.S.

citizens living abroad where they deemed those U.S. citizens to be a threat to their

installations or personnel.210 Since military installations inside the United States had

ample access to civilian law enforcement, the military did not need to conduct

investigations of persons or groups unaffiliated with the military, but needed to file

appropriate complaints and follow up to ensure that law enforcement completed the

investigations.211

The Church Committee noted that military intelligence was frequently asked, or

independently decided, to provide information or support to civilian law enforcement.212

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While the Committee affirmed that the law is unclear as to the extent of the military’s

legal ability support to law enforcement, it did find that Posse Comitatus precluded the

military from supporting law enforcement in criminal investigations of civilians.213

However, the Committee stated this preclusion is in reference to active measures on the

part of military intelligence, such as interviewing of witnesses and/or suspects.214 The

Church Committee acknowledged that aside from criminal investigations of civilians, the

law is much more ambiguous in delimiting the types of support military intelligence may

render to law enforcement.215 Therefore, in the context of the case law cited previously,

military intelligence can support domestic law enforcement in passive measures outline

in the court ruling and information sharing.

The Church Committee did not address passive measures such as monitoring

news media, which the U.S. Supreme Court stated was akin to what a news reporter

would do. Nor did it address intelligence analysis support, except where the military

participated in a Department of Justice Intelligence Evaluation Committee.216 However,

concerning this support, the Church Committee presumed that DoD would not perform

this type of support if not asked.217 In the same vein, the Church Committee also stated

that DoD Directive 5200.27, while prohibiting processing (read analysis) of information

on U.S. citizens or organizations not affiliated with DoD, still left enough ambiguity to

perform analysis consistent with the Directive.218

The Committee did not state either way whether providing analytical support was

either authorized or illegal. By looking at the intent of the Committee hearings on

military involvement, it appears the Committee would not have an issue with analytical

support if: 1) the data being analyzed was not collected by active means using military

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intelligence personnel (i.e. interviews, infiltration, etc.) and 2) the data analyzed did not

reside in a military facility or database.

The Church Committee hearings concerning the NSA looked at their surveillance

of communications involving American citizens, its reading of telegraph message traffic,

and its databases containing American citizen information.219 The Church Committee

focused on NSA’s reading of unencrypted international telegrams provided by the

telegraph companies since World War II, codenamed SHAMROCK, after a leak in the

New York Times exposed the base program.220 The NSA stated they retrieved daily

telegraph traffic from New York and processed it looking for items of foreign

intelligence interest, but that NSA did not have time to read telegrams of U.S. citizens.221

However, the Committee noted that screening unencrypted written communications

violated the National Security Council’s Intelligence Directive since NSA had no warrant

to look at the unencrypted telegraphs.222 Since the operation involved communications

that either originated or terminated in the United States, no civilian law enforcement

authority, such as the FBI or other Department of Justice agency, conducted oversight of

the program.

Another area the Church Committee looked at involved NSA’s “watch lists” of

words, phrases, individuals, and groups to select information that may be of intelligence

value.223 The Committee made distinction between watch lists that specifically target

U.S. citizens for foreign espionage verses watch lists that covered law enforcement

crimes.224 The Committee did not raise issues as to the legitimacy of the watch lists,

except where the NSA supported law enforcement without Congressional or Presidential

approval. The committee desired that the lists have more stringent controls, external to

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NSA, to preclude the controls changing for expediency of the mission currently at hand.

The Committee reviewed NSA’s files on U.S. citizens, and concluded that the files

predominately existed for NSA’s legitimate foreign intelligence mission.225

The Church Committee looked into the NSA’s intercept of electronic

communications. This focused on intercepts of telephone traffic and other signals to

foreign countries The Church Committee recognized that some intercept and

dissemination of U.S. citizens’ communications was unavoidable, and that NSA had

internal protocols to minimize the citizen’s identification both internal to and outside of

NSA. The larger issue for the Committee on this area was the deliberate collection of

intercept data for domestic purposes, such as identifying drug trafficking organizations or

antiwar and civil rights activity and linkages, to check for “foreign influence” on those

movements.226 The Committee found that NSA’s domestic collection generally followed

requests from other government agencies for intercepted communications information.227

In its conclusion on domestic intercept, the committee affirmed that the monitoring of

domestic communications is a small part of NSA’s mission, as its focus is international

communications.

The Committee did not seek to stop domestic intercepts, as it acknowledged it as

part of a legitimate foreign collection program, but to examine where this mission was

appropriate when it involved U.S. citizens and what needed to happen to make it legal.

The largest issue for the Committee was the use of intercepted communications of U.S.

citizens that must follow valid legal process for law enforcement purposes, as opposed to

counterespionage and counterintelligence purposes following administrative procedures

with the Department of Justice and the United States Intelligence Board.228

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The Foreign Intelligence Surveillance Act (FISA) of 1978 resulted from the

Ervin, Church and Pike Hearings, where Congress sought to protect the privacy of U.S.

persons from government surveillance of foreign communications.229 The statute limited

collection of foreign intelligence without a warrant if it was reasonably expected that a

U.S. person’s communications would be intercepted in the process.230 The law

established a special FISA court to approve electronic intercepts of national security

concern if a U.S. person’s communications may be intercepted without his/her prior

knowledge.231 The law provided that a U.S. person presumed to not be a foreign power or

agent thereof.232

If the government reasonably expected that no U.S. person would be intercepted,

the Attorney General, in consultation with the Director of National Intelligence, could

authorize electronic intercepts without a warrant, provided the Attorney General

informed the House and Senate Intelligence Committees.233 Furthermore, it allows for the

testing of electronic equipment without going through the approval process with the

Attorney General.234 To remedy the SHAMROCK liabilities with civilian businesses, the

law afforded payment for services rendered to the government, legal protections, and

penalties for violation of security protocols by the civilian businesses.235

The FISA law sought to error on the side of the U.S. person in light of the

government’s collection abuse by infringing on the Fourth Amendment rights. FISA

effected military intelligence collection based in the U.S targeting foreign sources, and

compelled DoD to work closely with the Department of Justice, the CIA, and NSA to

ensure compliance.

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That said, FISA hindered intelligence collection as it effectively required the

government to be absolutely positive that no U.S. person was in involved with the target

they desired to electronically monitor. This essentially equates to beyond reasonable

doubt—a conviction before trail, if the government desires not use the FISA Court, which

is a cumbersome and lengthy process. The result is an effectual elevation of a “foreign

power” or “agent of foreign power” to that of a U.S. person, as it is quite unlikely the

government would be able to determine no U.S. person would use the target

communications venue to be intercepted to forgo the FISA route.236 Also, as the 9/11

Commission report noted, the government must prove a person is either a foreign power

or an agent of a foreign power in order to receive a FISA warrant.237 The 9/11

Commission also noted that FISA process is quite complex, in that the FBI and

Department of Justice misinterpreted the requirements of the law on a regular basis.238

FISA restricted military intelligence from assisting law enforcement in regards to signals

collection if one party is a U.S. citizen, and communications within the United States are

presumed to involve a U.S. citizen. The military increased this standard to that of a U.S.

person, which covers aliens legally in the United States as well as citizens of the United

States. The end result of FISA is that it effectively prohibits military intelligence from

supporting law domestic law enforcement using signals intelligence.

Modern Era

The War On Drugs

President Nixon declared a “war on drugs” in 1971 after calling for the creation of

a national drug control strategy, due to the large increase in drug use on college campuses

during the 1960s and someone in the Nixon Administration assessing a connection

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between increase in drug use and increase in civil disturbances.239 However, DoD joined

this war in 1981 in a limited fashion.240 This did not change much in status until 1989,

when Congress greatly expanded the DoD’s role in the War on Drugs.

The National Defense Authorization Act of 1989 brought DoD to the forefront of

the War on Drugs. The statute made DoD the lead agency for detection and monitoring of

aerial and maritime transit of illegal narcotics and required the Secretary of Defense to

give annual written guidance on detection and monitoring of the aerial and maritime

threats to national security.241 This law required that “all command, control,

communications, and technical intelligence (C3I) assets of the United States that are

dedicated to the interdiction of illegal drugs be integrated by the Secretary into an

effective communications network.”242

Title XI recognized that DoD possesses the assets to adequately monitor the

maritime and air corridors that drug traffickers use to bring their product to the United

States. The relationship of the Coast Guard as a department within DoD afforded ease of

coordination with the other military branches than the other federal agencies. By focusing

DoD assets here, Congress fit the military capability where the likelihood of collection on

U.S. persons was diminished. However, this authorization did not expressly address the

FISA implications as it related to legal process on potential collection of U.S. persons.

This centralized intelligence system was to transmit actionable intelligence from the

military in real time so law enforcement could capitalize on the data.243 This part of the

law on C3I implied that the military did not need to follow FISA to the degree NSA and

CIA did. However, in the conference report to the act, Congress stated it wanted to keep

the tradition of keeping the military out of direct civilian law enforcement.244

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The law required DoD to maximize its support to law enforcement by when the

services plan and conduct training and operations.245 The law also authorized the

Secretary of Defense to lend military equipment, facilities and personnel to law

enforcement, with military personnel able to operate military equipment in direct support

of law enforcement and maintain equipment belonging to the military and law

enforcement.246 Furthermore, the law allowed the military to assist LEAs in enforcing

immigration and customs laws, in addition to drug laws.247 The law called for DoD to be

reimbursed by the civilian LEA for support provided if outside of normal military

training.248

The law attempted to maximize limited resources in that much of the interdiction

support the military could provide the LEAs is compatible with its military mission.

Naval ships patrol the high seas for enemy vessels in a hostile environment, so they can

seek to identify potential drug transport vessels as a part of that training for their mission.

Aircraft and air controllers monitor air traffic in a large area, and pursue enemy aircraft,

so monitoring air corridors for planes attempting to avoid Federal Aviation monitoring

and pursuing those aircraft is training for a wartime mission. Unmanned aerial vehicles

and other intelligence sensors monitor movement of opposing forces through rough

terrain and along avenues of approach, so monitoring border areas and drug corridors

transiting them is valid training for the sensor operators.

While the law directed the Secretary of Defense to seek reimbursement, one could

argue that Congress did not really expect this to happen. This is based on three things: (1)

the law directed the military to maximize training and operations to assist law

enforcement, meaning since the military was doing the training and/or operation to begin

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with, the law enforcement support is ancillary to that training and operations. (2) With the

authorization, the DoD received a sizable counterdrug budget, which would cover

operations not a part of training and/or operational military missions.249 (3) The law

required DoD to fund the National Guard counterdrug efforts after receiving an

acceptable plan from the Governors on the use of the Guard. The National Guard did not

seek reimbursement from law enforcement entities it supported, unless that support did

not have a counterdrug nexus.250

The law required DoD to market its capabilities and resources available to law

enforcement in each state annually.251 In making this requirement, one can infer that

Congress expected DoD to use all its available capabilities to affect the flow of drugs and

drug proceeds into and out of the United States. The law also stated DoD has the ability

and authority to help enforce immigration laws.252 This is likely due to drug traffickers

using the same corridors as illegal immigrants, and some illegal immigrants transporting

drugs across the border to pay their fee to alien smugglers assisting them across the

border.

Since the law included immigration, it indirectly tied immigration violations to

drug trafficking. This is a pertinent argument for counterterrorism support as well, as

media reports law enforcement encountering persons from terrorist havens crossing the

Mexico–U.S. border illegally. An example of potential terrorists illegally crossing the

U.S. border comes from a Tucson, Arizona television news report broadcast 13 August

2004. The report discussed finding Muslim accoutrements in the desert near the border

and a discussion of “Special Interest Aliens,” or illegal aliens from countries considered

terrorist threats.253 The report also cited a local newspaper that reported the Border Patrol

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arrested fifty-three Middle Eastern men, believed to be from Iran or Syria, near Wilcox,

Arizona, in June, 2004.254 As to the seriousness of the number of Middle Eastern persons

crossing the border illegally, Border Patrol Council President T.J. Bonner states, “It is

only a matter of time before another terrorist attack occurs, unfortunately.”255 The

military intelligence community possesses assets that can assist the Border Patrol in

detecting terrorists, drug traffickers, and aliens illegally crossing the U.S. border. These

assets and capabilities will be covered in Chapter 5. In the context of the long war on

terrorism and the connections between drug trafficking organizations and terrorist

organizations, it is a logical progression to have military intelligence support domestic

law enforcement in order to provide more of a defense in depth to the War on Terror.

This progression will be discussed in chapter 6.

9/11 and the 9/11 Commission Report

On September 11, 2001, nineteen terrorists of Al Qaeda network hijacked four

commercial U.S. jetliners, slamming two of them into the World Trade Center in New

York City and one into the Pentagon in Washington, DC. Within seven weeks of this

event Congress passed Public Law 107–56, Uniting and Strengthening America by

Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA

PATRIOT ACT) Act of 2001, otherwise known as the USA PATRIOT Act. The USA

PATRIOT Act sought to streamline some of the confusion over existing laws governing

surveillance. Title II, Section 203 and Title IX of the USA PATRIOT Act are the two

areas of the Act that impacted military intelligence.

Title II, Section 203, changed Title 18 USC, Section 2510 by including in the

definition of foreign intelligence information as “whether or not concerning a United

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States person,” originally defined by the FISA Act of 1978.256 Whereas the FISA law

excluded a U.S. person’s communications from foreign intelligence information, the

USA PATRIOT Act acknowledged the possibility of a U.S. person being involved in a

terrorist plot, whether wittingly or unwittingly, and sought to give that information to the

appropriate agency to investigate the veracity of the U.S. person’s involvement. This

indirectly applies to military intelligence, where in the past military personnel intercepted

foreign communications that involved a U.S. person traditionally discontinued

monitoring; now they may continue monitoring and pass the information to the FBI or

other appropriate federal agency.

Title II, Section 203 also changed the Federal Rules of Criminal Procedure,

governing grand juries, to allow for disclosing foreign intelligence and counter-

intelligence information to “any Federal law enforcement, intelligence, protective,

immigration, national defense, or national security official in order to assist the official

receiving that information in the performance of his official duties.”257 This corrected an

issue the 9/11 Commission would later uncover as a factor in the terrorist attacks in

2001.258 This affected military intelligence personnel as they now can receive grand jury

information, (actionable intelligence) to target foreign communications, whereas prior to

the change they could not receive grand jury information.

Title IX of the USA PATRIOT Act made changes to the National Security Act of

1947, updating it to current technology and terrorist modus operandi. Title IX, Section

902 added terrorist activities within the scope of foreign intelligence, closing the loop on

Al Qaeda’s declaration of war on the United States in 1998.259 In expressing its intent,

Congress made clear that the information regarding terrorist activity was to be shared

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with the entire intelligence community, which included the military, and that long-term

relationships to share intelligence be developed throughout the intelligence

community.260 Section 907 of Title IX establishes a virtual translation center between the

CIA and FBI.261 Military intelligence linguists possess this language skill, are already a

part of the overall intelligence community, and provide a cost saving measure over hiring

civilian linguists. This also affords military linguists the ability to keep their language

skills current when not deployed.

The USA PATRIOT Act was an immediate reaction by Congress to the terrorist

attacks, and began to ease some of the restrictions placed by the FISA law. As the fervor

and shock of the attacks waned, Congress wanted a complete review of the facts

surrounding the September 11 terrorist attacks. The Intelligence Authorization Act for

Fiscal Year 2003 required a “National Commission on the Terrorist Attacks Upon the

United States,” otherwise known as the 9/11 Commission, be established to examine the

facts leading to the attacks and recommendations for corrective measures.262 Congress

tasked the Commission to examine the intelligence and LEAs to see what happened and

recommend improvements to prevent future attacks.263 The Commission issued its final

report, The 9/11 Commission Final Report, on 22 July 2004.264 This thesis will look at

the intelligence issues and recommendations identified by the 9/11 Commission as it

relates to military intelligence or requirements of civilian intelligence capabilities that the

military can augment.

The commission looked at the intelligence components of the various

governmental agencies, including the Department of Defense, to identify shortcomings

that allowed for gaps in the overall intelligence picture.265 A common theme in the

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Commission’s analysis of the various security components is that the system rewards

those who protect and do not disseminate intelligence, despite that the agencies view

technology as a solution and not a problem.266

The Committee also looked at the FISA law as it related to collection by the

various intelligence agencies.267 The Commission found that agencies that possess the

ability to intercept terrorist communications to and from the United States rarely did so,

and did not seek a FISA warrant. In fact, those agencies desired to avoid all things

dealing with domestic intelligence collection, and did not pass information to the

agencies that had responsibility to monitor domestic terrorism.268 The Committee

conducted the evaluation of the FISA law at least one year after the enactment of the

USA PATRIOT Act, which amended sections of the FISA law to facilitate the war on

terror.269 The Commission followed the trail of the USS Cole investigation that

intertwined with some key 9/11 hijackers and noted a pattern of misunderstanding

concerning the FISA requirements in the CIA and FBI.270 The Commission noted that

this rightly frustrated agents in the field who tried to do their jobs, but ended up

hamstrung by misguided rules.271 The lack of understanding by the intelligence agencies

and Department of Justice, along with not enough manpower to follow the procedures as

they understood them, accounted for some of the issues surrounding the lack of FISA

warrants.

The Commission examined the analytical ability of the intelligence community

and found they were ill–suited for a terrorism focus.272 The Commission noted that the

depth of knowledge for analysis when facing one or two targets of the Cold War did not

transfer to terrorism, as terrorism is more fluid, has more independent actors, and

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required much quicker assessment and reaction times.273 The Commission also noted that

intelligence agencies show a tendency to not question views given, including identifying

and fixing vulnerabilities to dangerous threats.274 The military is more adept at this role

as its need for actionable intelligence in counterinsurgency operations necessitates a

quick analysis and dissemination of intelligence. Non–military intelligence agencies are

not yet suited for the terrorism focus as they are either too young or have too many

bureaucratic and political considerations to please, and so they are stifled in the manner

listed by the 9/11 Commission. The military intelligence community demonstrates

changing priorities of collections based on the commander’s priority intelligence

requirements, which can shift in the span of hours, verses days to months, and this

directed through three to six or more levels of command. Military intelligence personnel

also possess the requisite security clearances to work in the intelligence agencies to do

the job immediately.

The Commission praised the ideas of Counterterrorism Coordinator Richard

Clarke, who proposed, among other items, “undertaking a Joint Perimeter Defense

program with Canada to establish cooperative intelligence and law enforcement

programs, leading to joint operations based on shared visa and immigration data and joint

border patrols.”275 The Committee noted that border officials must work closely with

intelligence officials to best utilize intelligence databases in identifying suspected

terrorists.276 Clark identified a gaping hole in U.S. border security along the northern

border, which includes a large intelligence sharing and production gap. Military

intelligence already possesses the assets and skill to fix this, as they work Joint and

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multinational operations in the Afghanistan and Iraq theaters with their Coalition

counterparts, including the Canadians.

The Commission noted the controversy over sharing intelligence with private

firms and foreign governments for follow-on screening of select passengers, in relation to

security and civil liberties concerns.277 Many seeking to protect civil liberties use a

similar argument to keep the military out of the domestic intelligence business. The

controversy notwithstanding, the Commission still recommended sharing the information

while the government figures out the next generation of follow-on screening programs.278

Likewise, sharing intelligence with the military was addressed and allowed in both Laird

v. Tatum and United States v. Red Feather, and authorized in the National Defense

Authorization Act of 1989. The governing regulation for civilian intelligence is 28 CFR,

part 23; Director Dave Barton of the Midwest High Intensity Drug Trafficking Area

(HIDTA) and former chair of the HIDTA Intelligence Committee made the observations

that if the military personnel follow this like the law enforcement personnel, no issues

would result.279

The Commission noted that sharing of information among intelligence and law

enforcement communities, considering the liabilities, is still beneficial.280 The

Commission recommended that the president develop and clarify guidelines for this

information exchange that protects civil liberties.281 Executive Order 12333, which the

author will cover later, appears to satisfy this recommendation.

The Commission criticized that the funding of Homeland Security dollars was not

based on an assessment of vulnerabilities, but on population, and recommended that

future disbursements be predicated on an assessment.282 Most LEAs lack an intelligence

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cell to do these assessments, while military intelligence personnel possess operational

experience in this with active terrorist and insurgent organizations.

In its recommendations on how to reorganize government, the Commission made

two recommendations that include military intelligence:

• Unifying strategic intelligence and operational planning against Islamist terrorists across the foreign-domestic divide with a National Counterterrorism Center;

• Unifying the many participants in the counterterrorism effort and their knowledge in a network-based information-sharing system that transcends traditional governmental boundaries; 283

Here is where military intelligence can greatly benefit the counterterrorism fight. The

military is already deployed and collecting intelligence on terrorist organizations in their

havens–Southwest Asia, the Horn of Africa, Southeast Asia, and Latin America. This

data is collected in military intelligence databases and accessible to military analysts.

These same analysts have experience converting this information into actionable

intelligence reports at the tactical level, as well as wider regional assessments on the

movement of terrorists between the areas of operations in a Joint environment. This is

what the Commission foresaw as the future, as the Commission referenced the Joint

military environment as a blueprint of what the civilian interagency needs to emulate.284

This also ties into what the Commission regarded as a third reason for Joint

Action–a lack of experts with the requisite skill level.285 The military intelligence

community can again assist this issue as well. Since the analysts are immersed in the

terrorism problem on deployments, or at agencies that directly support deployed forces,

they build up these skills sought by the civilian agencies. Also, the military intelligence

community has a breadth of linguists in both Active and Reserve Components that cover

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the areas where terrorism has a base. The federal courts recognized and authorized this

type of support in United States v. Red Feather, where the Court decided that the military

providing what law enforcement lacks in support of their lawful duties does not violate

18 U.S.C., Section 1385.286 An example of this is the military intelligence brigade in

Utah that capitalizes on the language skills of Mormon missionaries. This unit is

authorized by to assist federal agencies in translation under the auspices of counterdrug.

The last major recommendation of the 9/11 Commission applicable to this theses

is the following:

NCTC—Operations. The NCTC should perform joint planning. The plans would assign operational responsibilities to lead agencies, such as State, the CIA, the FBI, Defense and its combatant commands, Homeland Security, and other agencies. The NCTC should not direct the actual execution of these operations, leaving that job to the agencies. The NCTC would then track implementation; it would look across the foreign–domestic divide and across agency boundaries, updating plans to follow through on cases.287

The model the Commission describes is already being accomplished in the domestic

counterdrug arena–the HIDTA program’s Domestic Highway Enforcement (DHE)

initiative setting the precedence.288 The HIDTA–DHE initiative assists with highway

patrol planning of coordinated enforcement operations on major interstate roadways

across agency boundaries to identify and interdict illegal activity. After interdictions, the

DHE program assists LEAs in evaluating the information and producing intelligence for

the LEAs who conducted the interdictions. The National Guard supports this program

with analysts under the direction and supervision of law enforcement.

The HIDTA program is an example of how the intelligence community as a

whole can achieve a unity of effort in the NCTC as envisioned by the Commission.289

Following the HIDTA protocols, agencies are encouraged to share information and sign

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memoranda of understanding to that effect. Military intelligence personnel under a

similar arrangement can do the same for counterterrorism operations as they do for

counterdrug operations. Agencies have security restrictions have protocols to vet and

grant clearances for law enforcement to access and use that information, and can adapt

those incorporate military personnel into their intelligence cells. Implementing a system

similar to the HIDTA program and incorporating military intelligence personnel would

break the intelligence community out of the Cold War paradigm, as the Commission

envisioned.290

The last major legislation that affected intelligence is the Intelligence Reform Act

of 2004. This Act came about as a result of the 9/11 Commission’s Final Report, and

sought to incorporate some of the Report’s recommendations. This Act has some bearing

on military intelligence support to law enforcement as it establishes the National Counter-

terrorism Center, using military Joint doctrine as an example for the intelligence centers

to follow as they participate in the Counterterrorism Center. Since the DoD intelligence

apparatus encompasses about eighty percent of the intelligence community budget and a

majority of its structure, it stands to reason that military intelligence professionals may

help staff the various nodes of the National Counterterrorism structure. This is reasonable

when given a tie to international terrorism or narcotics trafficking and impact on safety of

U.S. persons.

The Intelligence Reform Act of 2004 sought to tie in the military intelligence

community early when it defined terrorism information to include “all information,

whether collected, produced, or distributed by intelligence, law enforcement, military,

homeland security, or other activities.”291 By including the military in the sources of

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terrorist information, Congress implied that military intelligence, which processed and

analyzed the information, should be a part of the solution. Another implication of the

military intelligence community’s involvement in the counterterrorism arena is under the

Information Sharing Environment. This required the President to ensure that all agencies

with terrorist information share that information to the maximum extent allowed by law

and national security.292 Since the law already defined terrorist information as including

military intelligence data on terrorists, this requirement strongly inferred that those

military intelligence databases are included, with military intelligence analysts to operate

the interface with the interagency.

This case for military intelligence involvement is substantiated more a few

sections later in the Intelligence Reform Act of 2004. In outlining the mission of the

National Counterterrorism Center, Congress explicitly stated the Center is the primary

analysis, integration, and strategic operational planning organization within the

government concerning terrorism and counterterrorism, to include the military and

intelligence arenas.293 This Center filled one key recommendation from the 9/11

Commission’s Final report to facilitate information sharing.294 While it excluded

domestic terrorism with no foreign ties, it allowed for every agency to have access to the

purely domestic terrorism information, seeking to ensure that if a connection exits with a

foreign terrorist organization, the linkage will be found.295

Concurrently with the establishment of the National Counterterrorism Center, the

Intelligence Reform Act of 2004 established National Intelligence Centers to work

intelligence priorities on a regional scale.296 Similar to the National Counterterrorism

Center, the National Intelligence Centers are to share information and provide all source

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analysis of foreign and domestically gathered intelligence, but the latter does not have the

exclusive terrorism focus.297 This affords the ability to focus on other transnational

crimes such as drug trafficking, human trafficking, and money laundering as well, which

tie into related activities of terrorism. This arrangement is similar to the High Intensity

Drug Trafficking Area’s Investigative Support Center concept, were the military

intelligence community in the National Guard is already performing analytical support of

drug cases, as well as ancillary crimes to the drug offenses.

The Intelligence Reform Act of 2004 included the military intelligence

community under section 1041, where it tasked the Director of National Intelligence to

consider education grant programs within DoD.298 This section also required the

intelligence training program to include “cross pollination,” that is having an intelligence

agencies’ personnel spend time in other intelligence agencies.299 DoD policy and doctrine

support this requirement. DoD Directive 5143.01 directed the Undersecretary for Defense

(Intelligence) to ensure that DoD supports the National Intelligence Centers with staff.300

This fits with Joint Doctrine, which emphasized that “Successful interagency…

coordination helps enable the (United States Government) to build international support,

conserve resources, and conduct coherent operations that efficiently achieve shared

goals.”301 The Intelligence Reform Act of 2004 uses almost identical language under

Title VII of the statue.302 The Joint publication for homeland defense advocates this as

well.303

Congress weakened the separation of foreign and domestic intelligence in the

Intelligence Reform Act of 2004. Congress struck “foreign” from the National Security

Act of 1947, effectively changing the “National Foreign Intelligence Program as (the)

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National Intelligence Program” and blurred the line between foreign and domestic

intelligence that previously existed.304 This change fits with the previous discussion on

blurring the line between foreign and domestic intelligence, and removes a barrier that

kept some foreign terrorist information from getting to domestic agencies prior to 9/11.305

The 9/11 Commission identified intelligence shortfalls that allowed the 9/11

events to take place, and gave recommendations that helped to remedy those deficiencies.

Congress implemented most of the recommendations. The impact on military intelligence

is that as the military is a major player in intelligence, it needs to be an active player in

the homeland defense role. This includes using military capabilities to augment and

support the interagency abilities to protect the homeland, working in support of those

agencies. This ranges from providing sensor support to having analysts detailed to these

agencies to help them build their own capacity. When tying the Commission’s

recommendations in a historical context of military intelligence support to domestic law

enforcement, this support should be long term, as the statutory and case law analysis

support long term relationships concerning military support to and liaison with the

interagency.

Executive Orders and DoD Directives

Prior to the Rockefeller Commission report mentioned earlier in this chapter, DoD

sought to bring order to its intelligence program. It began with the counterintelligence

mission in February, 1971, where DoD issued Directive 5200.26 to establish oversight at

the undersecretary level for counterintelligence investigations.306 This Directive sought to

correct the military counterintelligence investigating non-DoD employees, as the practice

precipitated Congressional hearings on the matter.

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Once President Ford received the Rockefeller Commission Report on activities of

the CIA and the intelligence community within the United States, the President sought to

correct violations and bring regulatory guidance through Executive Order 11905.307 This

Executive Order authorized the CIA “to collect and produce intelligence on foreign

elements of international terrorism and narcotics trafficking.”308 Today the CIA still

assists in these functions with federal law enforcement and other intelligence community

entities.

Furthermore, Executive Order 11905 allowed for DoD to share critical

intelligence within the U.S. Government intelligence community, such as narcotics,

terrorism, and foreign intelligence.309 DoD Directive 5200.27 allowed the military to

assist with the Department of Homeland Security in doing analysis of critical

infrastructure as part of intelligence preparation of the environment.310 One of the

purposes of intelligence is to assist the commander to best utilize his limited resources to

accomplish the mission. This is accomplished through the intelligence preparation of the

environment process, which military intelligence is adept at with over seven years of

recent counterinsurgency experience.

Executive Order 11905 defined a foreign intelligence agency in part as “any other

department or agency of the United States Government . . . while it is engaged in the

collection of foreign intelligence or counterintelligence.”311 This definition tied the

restrictions of the Executive Order to the military intelligence community. The Executive

Order barred the intelligence community from direct physical surveillance against a U.S.

person, barred electronic surveillance within the United States other than for equipment

testing, and curtailed examination of mail envelopes outside of applicable statutes.312 The

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executive order limited military intelligence support to passive support of law

enforcement, in compliance with the United States v. Red Feather federal court decision.

Activities such as photo reconnaissance, intelligence training, equipment support, and

analysis are examples of what the executive order allowed as they are expressly

authorized by either statutory or case law. 313 The executive order did not prohibit

surveillance of a geographic area, which laid the foundation for the area surveillance

mission incorporated into the overall counterdrug mission.

Executive Order 11905 did lay the foundation for interagency “cross pollination,”

or exchange of personnel between agencies. It affected military intelligence personnel in

that when a service member worked for a federal agency outside DoD, such as the FBI,

the service member was prohibited from disclosing that agency’s affairs to DoD, except

as authorized by the host agency. This in effect allowed for military intelligence support

to law enforcement, as the National Guard counterdrug program practices this concept

today.

The current executive order in effect governing intelligence activities is Executive

Order 12333, originally designed under President Reagan. The current order is essentially

similar to the original, updated for new technological capabilities, the global war on

terrorism, and new intelligence activities within the federal government. The order

focused the intelligence community on identifying threats from espionage, terrorism, and

weapons of mass destruction.314 However, the order did direct the intelligence

community to consider state, local and tribal concerns in regards to intelligence collection

and dissemination, and to “prepare and provide intelligence . . . that allows free exchange

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of information.”315 Consistent with its guidance regarding consideration of the law

enforcement community, the order delineated five areas that pertain to this thesis.

1. “Information that is publically available,” otherwise known as open source

information. As previously mentioned in discussion of the Intelligence Reform Act of

2004, the law codified the intelligence community’s responsibility to perform this

analysis.316 In this point the executive order sought to modernize guidance to the

information age, and recognized that publicly available information is the least intrusive

means of gathering information on a target of investigation. This guidance is consistent

with the U.S. Supreme Court’s ruling in Laird v. Tatum.317 As most terrorist groups post

what they espouse, general targeting information, and pictures of terrorist activity on the

Internet, as well as drug traffickers posting their information on MySpace or Facebook, it

stands to reason that intelligence should conduct open source research to find this useful

information to dismantle both terrorist and drug trafficking cells and organizations.

Military intelligence is quite experienced at open source analysis as military intelligence

conducts this mission regularly in deployed theaters of operation. The tasks mentioned

here are consistent with DoD Directive 5525.5, where it directs DoD to consider law

enforcement needs when planning and conducting training.318 This also has the additional

benefit of maintaining skills in garrison that military intelligence personnel use while

deployed to seek public information on their operational area if the military intelligence

personnel operate under the auspices and at the direction of the supported law

enforcement agency.

2. “Information obtained in the course of a lawful foreign intelligence, counter-

intelligence, international narcotics or international terrorism investigation.”319 As

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mentioned in Chapter 1, The Department of State lists eighteen terrorist organizations

that derive a substantial amount of their support from drug trafficking.320 Consistent with

DoD Directive 5240.1, where terrorist activities are explicitly mentioned, narcotics

trafficking should be covered as well.321 In addition, this instruction also nests with DoD

Directive 5525.5.322 When looking at this as authorized by the Posse Comitatus Act, and

the link between narcotics and terrorism as noted above, Congress authorized this support

in the Defense Authorization Act of 1989, in requiring DoD to support drug interdiction

efforts.323 Executive Order 12333 allowed the intelligence community to participate in

law enforcement investigations of international terrorists and narcotics activities.324

3. “Information needed to protect the safety of any persons or organizations,

including those who are targets, victims or hostages of international terrorist

organizations.”325 DoD Directive 5240.1 stated that military intelligence can collect

information on international terrorist activities, and use the least intrusive means feasible

when dealing with a U.S. person.326 DoD Directive 5143.01 defined national intelligence

as “all intelligence, regardless of the source from which derived and including

information gathered within or outside the United States that pertains, as determined

consistent with any guidance issued by the President, to more than one United States

Government Agency; and that involves threats to the United States, its people, property,

or interests; the development, proliferation, or use of weapons of mass destruction; or any

other matter bearing on United States national or homeland security.”327 This stated it is

lawful for military intelligence to support counterdrug operations and counterterrorism

efforts within the United States via developing and executing collection plans approved

by law enforcement, and analysis and report generation for law enforcement use.

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4. “Information acquired by overhead reconnaissance not directed at specific

United States persons.”328 Unmanned aerial vehicles (UAV) possess the capability to

observe large tracts of land, to include monitoring border areas for alien and drug

smuggling activity consistent with the Intelligence Reform Act of 2004.329 In accordance

with the Economy Act of 1932, the cost of a UAV is much cheaper than other platforms

capable of this mission, such as manned aircraft, and law enforcement is allowed to ask

for its use in that Act.330 The Federal Court for the District of South Dakota stated that

the Economy Act of 1932 served as a logical basis for military support to law

enforcement for systems the military readily has available in United States v. Red

Feather.331

Using UAVs to support law enforcement as mentioned above is consistent with

DoD Directive 5525.5 as well, and provides realistic training for UAV crews as well332.

Dr. Steven Bucci, speaking to the Intermediate Level Education class at Fort

Leavenworth, Kansas, explained how UAVs supported the metropolitan Washington, DC

police in the beltway sniper attacks of 2002.333

5. “Incidentally obtained information that may indicate involvement in activities

that may violate federal, state, local or foreign laws.”334 This instruction in the order is

consistent with 10 U.S. Code, section 371, for both drug interdiction and terrorism.335

Alert military intelligence personnel may pick up indicators of criminal activity in the

course of their duties. Even in conducting open source searches for information, it is

relatively easy to stumble on evidence of obvious criminal activity. The law afforded

military personnel the opportunity to give that information to law enforcement without

recrimination for otherwise violating law, executive orders, or regulations.

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Another area Executive Order 12333 allowed for is concealed monitoring device

support to law enforcement. Military intelligence monitoring devices that are not

prohibited include ground surveillance radars (GSR), Remotely Monitored Battlefield

Sensor System (REMBASS), and signals direction finding systems.336 DoD Regulation

5240.1-R may be incongruous with Executive Order 12333, in that it appears to not allow

remote sensor monitoring along the U.S. border when the sensors are in the United

States. The Regulation defined concealed monitoring as:

targeting by electronic, optical, or mechanical devices a particular person or a group of persons without their consent in a surreptitious and continuous manner. Monitoring is surreptitious when it is targeted in a manner designed to keep the subject of the monitoring unaware of it. Monitoring is continuous if it is conducted without interruption for a substantial period of time.337

However, the context of the regulation is to prevent collection targeting U.S. persons or

that information which identifies U.S. persons, except where authorized. The sensors

listed above cannot identify a U.S. person by identifying characteristics. The GSR can tell

if the return is a vehicle or dismounted person, direction and range from the radar. The

REMBASS can tell the same if it breaks the string of employed sensors, within a certain

range. To direction find a signal, a collector system will only give a “cut,” that is a

general azimuth to the signal origination. To determine location, three different collectors

need to identify the same signal, and the intersecting azimuths give the general location.

The collector can be used to monitor frequency only, instead of audio. Therefore, these

sensors (and similar other sensors) harmonize with the executive order, which is updated

to reflect current technology.

DoD Directive 5525.5 went into more detail on authorization by law. It cited

several laws the directive can support, as well as allowing for support to other laws

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Congress may pass.338 The Defense Authorization Act of 1989 satisfied this section for

military support to the War on Drugs.339 The Intelligence Reform Act of 2004 also

satisfied this section in the War on Terror.340 However, the directive limited the support

to temporary support for training or operational support, and limited regular involvement

in essentially civilian law enforcement operations.341 These limitations are in conflict

with the Intelligence Reform Act of 2004, the National Defense Authorization Act of

1989, and Executive Order 12333, in that these documents envision long term

interagency cooperation in terrorism and narcotics trafficking.

These executive orders and directives give broad guidance to the intelligence

agencies of the United States government are the first step in regulating DoD intelligence

component activities. The next level is how this broad guidance translated into specific

limits and doctrine for military intelligence components, and the effect on support to

counterdrug and counterterrorism.

Regulations and Doctrine

Regulations implement the directives at the DoD and service level, and serve as

the limits to what military operations can conduct. Doctrine is the principle or reasoning

that guides the “how” in the way the military conducts operations. DoD Regulation

5240.1-R, National Guard Regulation (NGR) 500-2, and Army Regulation (AR) 381-10

govern the limits of military intelligence support in domestic operations. However, only

AR 381-10 and NGR 500-2 remained somewhat current with changes in statutory and

case law. AR 381-10 restated what is in DoD Regulation 5240.1-R and added extra

instructions for specific Army intelligence missions. Only those extra instructions as they

pertain to this thesis are discussed by exception. Joint Publication (JP) 3-07.4 (Joint

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Counterdrug Operations) and JP 3-27 (Joint Homeland Defense) are the two doctrinal

publications that guide military intelligence support to counterdrug or counterterrorism

operations.

DoD Regulation 5240.1-R implemented how DoD expected to comply with the

National Security Act of 1947, The Foreign Intelligence Surveillance Act of 1978, DoD

Directive 5525.5, and E.O. 12333 governing how DoD intelligence components’

activities affect U.S. Persons.342 DoD 5240.1-R governed independent collection by DoD

intelligence components and granted limited authority to perform collection for foreign

intelligence and counterintelligence purposes. DoD made no updates to this regulation

since 1982, even though Congress passed numerous laws affecting intelligence activities,

such as the National Defense Authorization Act of 1989, The USA PATRIOT Act, and

The Intelligence Reform Act of 2004, as well as the President’s periodic updates to E.O.

12333.

DoD Regulation 5240.1-R encompassed fifteen procedures that govern

intelligence activities and served as a basis for AR 381-10 and NGR 500-2, covering

military personnel under both Title 10 and Tile 32 USC status. The regulation granted

limited authority to collect, retain, and disseminate information regarding U.S. persons in

Procedures Two through Four.343 While Procedures Five through Ten govern collection

techniques concerning foreign intelligence targets, they have application in the domestic

arena concerning counterdrug and counterterrorism.344

Procedure Two of DoD Regulation 5240.1-R covered the collection of

information regarding U.S. persons, but did not state whether this collection is

independent by the military or in support of a civilian LEA. This procedure is generally

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understood to cover authorized domestic intelligence collection missions. In the historical

context when this regulation was written in the late 1970s, it sought to address the

concern of the American public in regards to how military intelligence units

independently collected information on U.S. persons. Not only was the collection a

concern, but that military intelligence units stored them in military databases without any

supporting requests from law enforcement to do so. This procedure allowed DoD

intelligence components to collect information by all lawful means, utilizing the least

intrusive means possible, including open-source material, and in accordance with E.O.

12333.345 NGR 500-2, written to govern the counterdrug program of the Army and Air

National Guard, placed the responsibility for obtaining necessary warrants, subpoenas,

and collection requirements on the supported LEA.346 In regards to military support to

law enforcement for counterdrug and counterterrorism, this guidance is prudent.

Among other items, Procedure Two in DoD Regulation 5240.1-R allowed DoD

intelligence personnel to collect information on U.S persons engaged in international

narcotics and international terrorism.347 DoD intelligence personnel may utilize overhead

imagery, and search publically available information regarding U.S. persons engaged in

narcotics and terrorism, using the least intrusive means.348 This is consistent with the

federal court rulings in Laird v. Tatum and United States v. Red Feather, which stated

passive support to law enforcement by the military is legally acceptable.349 Note that this

regulation came about well before the Internet revolution, which greatly expanded the

availability of information regarding a U.S. person in the public domain. The Intelligence

Reform Act of 2004 explicitly stated that the intelligence community should exploit Open

Source Intelligence, which encompasses the Internet, to gather intelligence on terrorist

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and narcotics activities.350 An example of how this works in the counterdrug arena is a

law enforcement officer directs a counterdrug analyst working at the police station to

search the Internet for any information on suspect John Doe. The analyst finds John

Doe’s FaceBook page as an open source material and captures pictures of John Doe

holding guns next to his marijuana plants, in compliance with DoD Regulation 4240.1–

R.351 In addition, Joint Publication 3-07.4, Joint Counterdrug Operations, listed linguist

and intelligence services as valid missions for counterdrug support to law enforcement,

something the military can do in the course of training under the Economy Act.352 DoD

Regulation 5240.1-R did not address information residing in law enforcement databases

that a military intelligence professional supporting a LEA would have access to.

DoD Regulation 5240.1-R Procedure Three governed the retention of information

about U.S. persons, again in the historical context of post-Church and Pike Committee

hearings. This procedure allowed information collected pursuant to Procedure Two to be

retained in DoD intelligence systems for ninety days, with the availability of a ninety day

extension, to determine if it the information can be permanently retained for intelligence

use.353 AR 381-10 required information deemed legal to retain be reviewed annually to

verify the purpose for retaining the information is still valid.354 AR 381-10 addressed

information collected pursuant to a law enforcement approved collection plan in support

of a law enforcement counterdrug or counterterrorism mission under its reworked

Procedure 12 when it stated:

Intelligence personnel assigned or detailed to counter drug elements supporting CLEA must comply with the rules governing that agency and the rules under which the Army approved their assignment or detail.355

NGR 500-2 framed the issue as:

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National Guard members support the criminal (narcotics) information analysis activities of LEAs, Criminal (narcotics) information comes into temporary possession of National Guard members supporting LEAs, but is not retained by the National Guard.356

NGR 500-2 also stated that “The National Guard will not maintain or store final products

in National Guard facilities or databases.”357 This regulation did not restrict use of

National Guard equipment to create the products, especially when the equipment was

housed at the supported LEA. Common sense dictates that equipment, such as a stand–

alone computer not remotely connected into the DoD network, housed at an LEA is under

the LEA’s control. This logic affords to the use of military intelligence software

programs to identify complex patterns.

Procedure Four in DoD Regulation 5240.1-R provided dissemination guidelines

for information collected under Procedure Two and retained under Procedure Three, not

administrative in nature, court ordered, or otherwise governed by law.358 The regulation

allowed for dissemination to law enforcement and other members of the intelligence

community, provided they had a need for the information in the course of their official

duties.359 In practice, the Provost Marshall is the deciding authority and conduit to LEAs

for most military installations. NGR 500-2 stated that the LEA is responsible for setting

dissemination rules, to include public affairs and press releases, and serves as a guideline

for DoD policy clarification where needed on the subject.360

DoD Regulation 5240.1-R Procedure Five governed electronic surveillance within

the United States for intelligence purposes.361 The purpose of electronic surveillance is to

collect information on non-U.S. persons operating for or on behalf of a foreign power for

foreign intelligence purposes, as covered by AR 381-10.362 While the 1984 version of AR

381-10 stated if electronic surveillance is conducted against foreign targets where both

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sender and receiver are outside the United States, the electronic surveillance platform can

be within the United States, the 2007 version did not specifically address this.363

Collection of this nature is valuable in monitoring border areas for drug and alien

smuggling across the border or territorial waterways. This foreign focus of surveillance

meets the intent of the Intelligence Reform and Surveillance Act by supporting

monitoring of the border for smuggling operations.364 If in the course of this foreign

electronic surveillance collection, the collection system “incidentally” acquires the

communications of a U.S. person, the surveillance status does not automatically change

to “directed” against a U.S. person.365 Since Procedure Six defined communications

concerning a U.S. person as that which gives uniquely identifiable information on a

person such as name, address, or personal identifiers, this severely limits electronic

surveillance within the United States.366

Procedure Six of DoD Regulation 5240.1-R covered concealed monitoring and

encompasses electronic, optical, or mechanical devises in a continuous a manner.367 This

is done along the borders to identify when traffickers are crossing the border, but does not

detect where they go after entry into the United States. This involves use of unmanned

aerial vehicles (UAV) and remotely monitored ground sensors. No reasonable

expectation of privacy exists, which is where a reasonable person is entitled to believe his

or her actions are not subject to monitoring by electronic, optical or mechanical

devices.368 Since the border is generally considered open fields, a person has no

reasonable expectation of privacy. This lack of reasonable expectation of privacy is

confirmed by the U.S. Supreme Court decision in Oliver v. United States as follows:

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Since Katz v. United States, supra, the touchstone of Fourth Amendment analysis has been whether a person has a "constitutionally protected reasonable expectation of privacy." Id. at 389 U. S. 360. The Amendment does not protect the merely subjective expectation of privacy, but only those "expectation[s] that society is prepared to recognize as reasonable.'" Id. at 389 U. S. 361. Because open fields are accessible to the public and the police in ways that a home, office, or commercial structure would not be, and because fences or "No Trespassing" signs do not effectively bar the public from viewing open fields, the asserted expectation of privacy in open fields is not one that society recognizes as reasonable. Moreover, the common law, by implying that only the land immediately surrounding and associated with the home warrants the Fourth Amendment protections that attach to the home, conversely implies that no expectation of privacy legitimately attaches to open fields. Pp. 466 U. S. 177–181.369

This court case came after DoD Regulation 5240.1-R was written, and DoD did not

update the regulation to account for changes in statutory and case law. NGR 500-2

contained language that addressed area surveillance verses person surveillance and

required a law enforcement officer to be present or in direct contact with the military unit

performing a reconnaissance mission.370 This procedure ties directly with and impacts

Procedure Nine.

DoD Regulation 5240.1-R Procedure Nine covered physical surveillance of a

person for foreign intelligence purposes, but did not cover area surveillance.371 Again,

NGR 500-2 provided good verbiage that met the intent for interagency cooperation

monitoring per the Intelligence Reform and Surveillance Act of 2004.372 NGR 500-2

allowed for area surveillance to detect and record activity occurring within the designated

area pertaining to trafficking and drug related activities utilizing unattended sensors,

listening posts/observation posts, and ground surveillance radar.373 Joint Publication 3-

07.4 listed aerial and ground reconnaissance as valid missions for counterdrug support to

law enforcement.374 The aerial reconnaissance mission in NGR 500-2 allowed for

following aircraft, watercraft and motor vehicles using UAVs, radars, and manned

http://supreme.justia.com/us/389/347/case.html#360

http://supreme.justia.com/us/389/347/case.html#361

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aircraft, provided a law enforcement officer is either onboard the aircraft, or in direct

contact.375 To apply this to UAV reconnaissance, the law enforcement officer should be

by the command module. This is what DoD did in a Title 10 status to support law

enforcement in the metropolitan Washington, DC, sniper terrorism case in 2002,

according to Dr. Steven Bucci.376 As AR 381-10 contained the caveat that Army

intelligence components may assist the FBI in conducting physical surveillance if

requested by the FBI, in accordance with the Delimitations Agreement, this action fit

within the regulatory guidance.377 AR 381-10 authorized surveillance of non–U.S.

persons who enter the United States if approved by the Commanding general,

Intelligence and Security Command, or Army Chief of Staff for Intelligence, or their

designees.378 This interpretation is in light of the alien status listed in DoD Regulation

5240.1-R under Procedure 5.3.2.4.2.379

The last procedure that affects military intelligence support to law enforcement

for counterdrug and counter terrorism is Procedure Twelve in DoD Regulation 5240.1-R,

covering law enforcement assistance by DoD intelligence components.380 The context of

this procedure entailed the DoD intelligence community providing criminal information

to law enforcement if encountered in the course of the DoD intelligence community’s

authorized missions, independent of law enforcement involvement.381 This procedure

allowed for cooperating with investigations for international narcotics and terrorist

activities, and authorized DoD intelligence component personnel to be assigned to federal

law enforcement agencies.382 DoD Regulation 5240.1-R also allowed for the option of

analyst support in this procedure by assigning DoD intelligence personnel to a federal

law enforcement agency, which is central to assisting the federal interagency in building

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intelligence analytical capacity, as called for in the Intelligence Reform and Surveillance

Act of 2004.383

DoD regulations governing intelligence activities have not kept up to date with

Executive Order changes, new or revised statutory laws or court decisions affecting

intelligence activities. The framework in these regulations allow for some support, but

appear to be more of a crutch DoD can cite as to why they should not support the law

enforcement community in the United States in the war on terrorism or the war on drugs.

However, this paradigm is showing signs of shifting as Joint doctrine expanded the

guidelines to support the interagency, to include domestic law enforcement.

Joint Publication (JP) 3-07.4, Joint Counterdrug Operations, gave the doctrinal

framework for counterdrug operation within the United States. The Joint Publication

states:

DOD policy guidance recognizes that “illicit drugs traffickers and terrorists often use the same methods to smuggle money, people, information, weapons and substances, and that in many cases, illicit drug traffickers and terrorists are one and the same.” Looking beyond terrorism, the illegal drug industry can fuel violence and corruption to levels which may overwhelm governments, threatening the stability of key countries or creating “ungoverned spaces.”384

This demonstrates a paradigm shift within the Pentagon, where senior leadership

officials, including former Secretary of Defense Donald Rumsfeld, considered the

military counterdrug mission as “nonsense” and departed from earlier assessments

concerning drug trafficking.385 National Security Decision Directive 221, signed by

President Reagan, considered the drug trade a national security threat, both for its effects

domestically and due to some drug traffickers cooperating closely with insurgents and

terrorist organizations.386 The National Security Decision Directive acknowledged the

latter two derived a major portion of their support from narcotics trafficking.387 JP 3-07.4

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reaffirmed that terrorists use drug venues to conduct terrorism not related to drug

trafficking, coining the term “narco–terrorist.”388

To facilitate the interagency integration required by the Intelligence Reform Act

of 2004, JP 3-07.4 recognized the FBI and DEA as the two lead agencies within the

Department of Justice for terrorism and narcotics investigations.389 JP 3-07.4 also

acknowledged the National Drug Intelligence Center as the principal center for strategic

intelligence on drug activity, which infers a support role to this center based on

requirements from the Intelligence Reform and Surveillance Act of 2004.390 The National

Guard Counterdrug program embodies the Joint Publication in that it is the largest Joint

counterdrug program within the United States and includes large numbers of both Army

and Air National Guardsmen. The missions listed in JP 3-07.4, taken from NGR 500-2,

exemplify the types of support that law enforcement is looking for from the military, as

this paper will cover in Chapter 5.

JP 3-27, Homeland Defense, provided the doctrinal framework to protect the U.S.

homeland, which is DoD’s highest priority, and focused on terrorism.391 While DoD is

responsible for the homeland defense mission, it may be in a support role to the

Department of Homeland Security or other Federal agency, and DoD will coordinate

closely with the other federal agencies involved.392 JP 3-27 identified civil support as part

of the DoD’s mission to secure the homeland.

Military intelligence support nests within interagency support in respect to Title

50 U.S. Code, Section 402, which included transnational threats of narcotics, alien

smuggling, and terrorism as threats to United States national security.393 JP 3-27 stated

that illegal immigrants, drugs, and terrorists remain persistent threats to the United

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States.394 Also, JP 3-27 quoted the Strategy for Homeland Defense and Civil Support

where it “calls for securing the United States . . . through an active, layered defense in

depth.”395 However, while JP 3-27 discussed a proactive approach by DoD outside the

United States, it placed DoD in a reactive mode within the United States. Dave Barton,

Director of the Midwest High Intensity Drug Trafficking Area, stated wryly, “We cannot

keep drugs out of the Fort Leavenworth Federal Prison. Why do we think we can stop

smuggling at the border? We need to have a defense in depth within the United

States.”396

JP 3-27 stated “homeland defense operations may be either active or passive.”397

Most military intelligence operations other than Human Intelligence collection and

Communications intercept meet the legal definition of passive support, per the court

ruling in United States v. Red Feather.398 JP 3-27 affirmed that passive military

intelligence support to law enforcement in support of counterdrug and counter-terrorism

operations is within Joint doctrine parameters.399 It acknowledged DoD’s ability to

conduct intelligence support operations inside the United States within specific

guidelines, but did not place much emphasis on this domestic intelligence support.400

However, while JP 3-27 called for training, intelligence preparation of the environment,

and intelligence, surveillance, and reconnaissance to be conducted to facilitate planning,

it only called for DoD to do this outside the United States, except for North American

Aerospace Defense Command’s tactical warning and attack assessments.401 This apparent

contradiction provides a glimpse into the DoD struggle to not cross any lines concerning

collecting on U.S. persons.

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Four of the offensive objectives JP 3-27 called for have direct bearing on both

offensive and defensive operations to protect the homeland within the United States. The

objectives listed in JP 3-27 are (number Four omitted as it did not apply to the topic):

(1) Disrupt enemy coherence and dissipate his power. (2) Secure or seize important terrain (3) Deny the enemy resources for continued hostile operations (read

narcotics trafficking operations). (5) Gain information to support continuing operations against enemy

forces (read intelligence analysis and dissemination)402

Although JP 3-27 did not state so, these objectives apply to both offensive and defensive

actions.

JP 3-27 called for Combatant Commanders with homeland defense

responsibilities having the lead for DoD homeland defense intelligence operations.403

Military intelligence regularly develops and synchronizes the collection effort to

maximize limited resources and support situational awareness, which is a capability that

law enforcement needs, but presently lacks. JP 3-27 called for DoD to lead the way in

information sharing and listed it as an “operational necessity . . . that minimizes

intelligence gaps.”404

Military intelligence can support law enforcement with passive measures in

counterdrug and counter terrorists operations, as shown by both statutory and case law.

Modern era executive orders written since 1980 give clarification to the laws passed

governing DoD intelligence activities. However DoD Directives do not address changes

in the statue or court rulings since 1984. The Joint publications give the doctrinal

framework of how to support domestic counterdrug and counterterrorism operations. The

regulations give specific guidance on implementing intelligence support.

116

Conclusion

The legal review of historical events and the legislation regarding military

employments around them clearly show statutory and case law exists allowing military

intelligence components to support law enforcement in counterdrug and counterterrorism.

The constitutional debate and legislation shortly after the conclusion of the war for

independence gave the president latitude in using force to put down insurrections. The

analysis of the Whiskey Rebellion and Tax Rebellion of 1799 shows that Congress and

the founding fathers of the Constitution recognized the need for the nation to enforce its

laws against rebellion and insurrection. The review of the use of military forces framing

the Civil War and Reconstruction era that led into passage of the Posse Comitatus Act

show that the military’s mission evolved into a direct law enforcement mission absent a

directive by the President, although Congress did authorize this mission creep.

Military intelligence activities, once Congress began granting exceptions to the

Posse Comitatus Act, expanded until Congress defined what military intelligence

activities were acceptable within the Unites States. However, Congress then began to

loosen these restrictions in the War on Drugs and as a result of the terrorist attacks on 11

September 2001, with the latter based on the Congressional Commission’s

recommendations, the Commission being set up after the attacks.

The research showed that presidential executive orders, DoD directives, and

regulations are more restrictive than what either statutory or case law entail, and are the

major limiters to the amount of support military intelligence can provide to law

enforcement. Doctrine, on the other hand, allows for an expanded mission once the

regulations, which DoD and the Army did not update over the last twenty-five years, are

117

updated. Now that the legal justification is established, chapter 5 will cover what the

military intelligence community has to support law enforcement in counterdrug and

counterterrorism operations, and areas law enforcement desires assistance from the

military intelligence community.

1Richard H. Kohn, “The Washington Administration’s Decision to Crush the

Whisky Rebellion,” The Journal of American History, 59, no. 3 (December 1972): 567, http://www.jstor.org/stable/1900658 (accessed 2 April 2009).


3Alexander Hamilton, “Federalist no. 29,” Constitution.org http://www.constitution.org/fed/federa29.htm (accessed 1 January 2009).

4Ibid.

5The Judiciary Act of 1789, 1 Stat. 73. CHAP. XX, SEC 27 (24 September 1789). http://www.constitution.org/uslaw/judiciary_1789.htm (accessed 23 September 2008).

6The Military Act of 1792, Statute at Large, Vol. I, CHAP. XXVIII (2 May 1792), § 1-2.


8William D. Barber, “Among the Most Techy Articles of Civil Police: Federal Taxation and the Adoption of the Whiskey Excise,” The William and Mary Quarterly, Third Series, 25, no. 1 (January 1968), 58-84, http://www.jstor.org/stable/1920806 (accessed 3 April 2009).

9Ibid., 58.

10Ibid., 60.

11Max Ferrand, “The Records of the Federal Convention of 1787” (New Haven, CT, 1911), 204. Quoted in William D. Barber, “Among the Most Techy Articles of Civil Police: Federal Taxation and the Adoption of the Whiskey Excise,” The William and Mary Quarterly, Third Series, Vol. 25, no. 1 (January 1968), 60. http://www.jstor.org/ stable/1920806 (accessed 3 April 2009).

12Jonathan Elliott, “The Debates of the Several Conventions on the Adoption of the Federal Constitution” (Washington, DC, 1836), IV, 75. Quoted in William D. Barber,

118

“Among the Most Techy Articles of Civil Police: Federal Taxation and t Adoption of the Whiskey Excise,” The William and Mary Quarterly, Third Series, Vol. 25, no. 1 (January 1968), 60. http://www.jstor.org/stable/1920806 (accessed 3 April 2009).

13William D. Barber, “Among the Most Techy Articles of Civil Police: Federal Taxation and t Adoption of the Whiskey Excise,” The William and Mary Quarterly, Third Series, 25, no. 1 (January 1968), 68-69. http://www.jstor.org/stable/1920806 (accessed 3 April 2009).

14Ibid., 71-73.

15Ibid., 80.

16Encyclopedia Britannica, Whiskey Rebellion, Encyclopedia, 2005. http://www.britannica.com/EBchecked/topic/641925/Whiskey-Rebellion (accessed 2 January 2009).

17Richard H. Kohn, “The Washington Administration’s Decision to Crush the Whisky Rebellion,” The Journal of American History, 59, No. 3 (December 1972), 568. http://www.jstor.org/stable/1900658 (accessed 2 April 2009).

18The Columbia Encyclopedia, Whiskey Rebellion, Encyclopedia, 6th ed., 2008. http://www.encyclopedia.com/doc/1E1-WhiskReb.html (accessed 2 January 2009).

19Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789-1878 (Washington, DC: Government Printing Office, 1988), 19.

20Richard H. Kohn, “The Washington Administration’s Decision to Crush the Whisky Rebellion,” The Journal of American History, 59, no. 3 (December 1972), 570. http://www.jstor.org/stable/1900658 (accessed 2 April 2009).

21Ibid., 583.

22Ibid., 571.

23Ibid., 580.

24Encyclopedia Britannica, Whiskey Rebellion, Encyclopedia, 2005. http://www.britannica.com/EBchecked/topic/641925/Whiskey-Rebellion (accessed 2 January 2009).

25Richard H. Kohn, “The Washington Administration’s Decision to Crush the Whisky Rebellion,” The Journal of American History, 59, no. 3 (December 1972), 583. http://www.jstor.org/stable/1900658 (accessed 2 April 2009).

26Ibid., 573.

119


28Matt Matthews, “The Posse Comitatus Act and the United States Army: A Historical Perspective” (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 11. See also Harold C. Syrett, ed., The Papers of Alexander Hamilton, Volume 17, August 1794–December 1794 (New York: Columbia University Press, 1972), 331–336.

29The Judiciary Act of 1789, 1 Stat. 73. CHAP. XX, SEC 28 (24 September 1789). http://www.constitution.org/uslaw/judiciary_1789.htm (accessed 23 September 2008); The exception to this is when the duly appointed law enforcement official either cannot or will not conduct his sworn duty.

30The Military Act of 1792, Statute at Large, Vol. I, CHAP. XXVIII (2 May 1792), n2; See also Matt Matthews, The Posse Comitatus Act and the United States Army: A Historical Perspective (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 13; Stated “On 28 February 1795, Congress revamped the Calling Forth Act of 1792. Delighted by Washington’s performance during the Whiskey Rebellion, Congress increased the president’s power. The president no longer had to rely on a judge before calling out the militia. More importantly, he could call forth citizen soldiers to put down insurrections and uphold the laws even when Congress was in session.”

31The Military Act of 1792, Statute at Large, Vol. I, CHAP. XXVIII (2 May 1792), n2; Sec. 5. And be it further enacted, That every officer, non-commissioned officer or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court martial; and such officers shall, moreover, be liable to be cashiered by sentence of a court martial: and such non-commissioned officers and privates shall be liable to be imprisoned by the like sentence, or failure of payment of the fines adjudged against them, for the space of one calendar month for every five dollars of such fine. Sec. 6. And be it further enacted, That court martial for the trial of militia be composed of militia officers only. Sec. 7. And be it further enacted, That all fines to be assessed, as aforesaid, shall be certified by the presiding officer of the court martial before whom the same shall be assessed, to the marshal of the district, in which the delinquent shall reside, or to one of his deputies; and also the supervisor of the revenue of the same district, who shall record the said certificate in a book to be kept for that purpose. The said marshal or his deputy shall forthwith proceed to levy the said fines with costs, by distress and sale of the goods and chattels of the delinquent, which costs and manner of proceeding, with respect to the sale of the goods distrained, shall be agreeable to the laws of the state, in which the same shall be, in other cases of distress; and where any non-commissioned officer or private shall be adjudged to suffer imprisonment, there being no goods or chattels to be found, whereof to levy the said fines, the marshal of the district or his deputy may commit such delinquent to gaol, during the term, for which he shall be so adjudged to imprisonment, or until the fine shall be paid, in the same manner as other persons condemned to fine and imprisonment at the suit of the United States, may be committed.

120



34Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789-1878 (Washington, DC: Government Printing Office, 1988), 76-77; Coakley states that “there was, nonetheless, something to be said for the philosophy that once a decision to use military force had been reached, that force should be shaped to act quickly and decisively. But Adams, Hamilton and McPherson… stretched the president’s legal prerogatives by including regulars (Army) in the expedition.”


36Ibid., 13.

37The Fugitive Slave Act of 1850, 31st Cong., 2nd Sess., (18 September 1850), § 4, 6.

38Matt Matthews, “The Posse Comitatus Act and the United States Army: A Historical Perspective” (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 15; “It is possible that the civil authorities may find it necessary to call in military force to aid in the execution of the law. If such should be the case, and the marshal or any of his deputies shall exhibit to you the certificate of the circuit or district judge of the United States in the State of Massachusetts, stating that in his opinion the aid of a military force is necessary to insure the due execution of the laws, and shall require your aid and that of the troops under your command as part of the posse comitatus, you will place under the control of the marshal yourself and such portion of your command as may be deemed adequate to the purpose. If neither the circuit or district judge shall be in the city of Boston when the exigency above referred to shall occur, the written certificate of the marshal alone will be deemed sufficient authority for you to afford the requisite aid.32” See also Frederick T. Wilson, Federal Aid in Domestic Disturbances, 1781-1903, 67th Cong., 2nd sess., Document no. 263.


40Matt Matthews, “The Posse Comitatus Act and the United States Army: A Historical Perspective” (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 16; “The committee are not aware of any reason that exempts the citizens who constitute the military and naval forces of the United States from like liability to duty. Because men are soldiers or sailors, they cease not to be citizens; and while acting under the call and

121

direction of the civil authority, they may act with more efficiency, and without objection, in an organized form, under appropriate subordinate command.” See also Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders 1789-1878. (Washington, DC: Government Printing Office, 1988), 130-131.

41Matt Matthews, “The Posse Comitatus Act and the United States Army: A Historical Perspective” (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 23-24. See also Coakley, Robert W. The Role of Federal Military Forces in Domestic Disorders 1789-1878, (Washington, DC: Government Printing Office, 1988), 271.


43Matt Matthews, “The Posse Comitatus Act and the United States Army: A Historical Perspective” (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 24; These traditionalist governments acted quickly to pass new laws, known as “Black Codes,” severely limiting the rights of blacks. Describing the Southern state leaders’ intent to keep the black population under the thumb of a white government, politician Benjamin F. Flanders stated, “Their [the South’s] whole thought and time will be given to plans for getting things back as near to slavery as possible.”6 One exasperated US Army colonel reported to his superior officer his impression of the Southern way of thinking: “Men, who are honorable in their dealings with their white neighbors, will cheat a negro without feeling a single twinge of their honor; to kill a negro they do not deem murder; to debauch a negro woman they do not think fornication; to take property away from a negro they do not deem robbery. . . They still have the ingrained feeling that the black people at large belong to the whites at large.” Johnson’s liberal approach to Reconstruction produced a resurgence of conservative state governments across the South that encouraged unimpeded racism and terror campaigns against the black population.


45Ibid., 24; Civil Rights Act Clause: And be it further enacted, That it shall be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of this act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of the person upon whom the accused is alleged to have committed the offense. And the better to enable the said commissioners to execute their duties faithfully and efficiently, in conformity with the Constitution of the United States and the requirements of this act, they are hereby authorized and empowered, within their counties respectively, to appoint, in writing, under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; and the persons so appointed to execute any warrant or process as aforesaid shall

122

have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged, and to insure a faithful observance of the clause of the Constitution which prohibits slavery, in conformity with the provisions of this act; and said warrants shall run and be executed by said officers anywhere in the State or Territory within which they are issued.

46Matt Matthews, “The Posse Comitatus Act and the United States Army: A Historical Perspective” (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 15;Southern Democrats wanted federal force to enforce the Fugitive Slave Act, and President Fillmore wanted to utilize federal troops to make it happen. In this way Southern Democrats welcomed the use of the military to enforce the Slave law when it suited them. It is ironic that when virtually the same language was used to enforce freed blacks rights and liberties, Southern Democrats decried the use of federal troops in this manner unconstitutional.



49Ibid., 26.

50Ibid.

51Ibid., 27.

52Ibid., 29; Matthews notes that by fall of 1871, the Army participated in more than 200 posses just in South Carolina. No numbers given for the other states.

53Ibid., 33.

54US Congress, The Posse Comitatus Act of 1878, (Knott Amendment), 20th Statute, L., 145. http://www.dojgov.net/posse_comitatus_act.htm (accessed 18 October 2008).

55US Congress, Title 10 USC, Section 375. http://www.dojgov.net /posse_comitatus_act.htm (Accessed 18 October 2008).

56John R.Brinkerhoff, “The Posse comitatus Act and Homeland Security,” Homeland Security Journal (February 2002). http://www.homelandsecurity.org/journal/ Articles/brinkerhoffpossecomitatus.htm (accessed 23 September 2008).

57Matt Matthews, The Posse Comitatus Act and the United States Army: A Historical Perspective (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 33.

123


59Eugene P.Visco, “More Than You Ever Want to Know About Posse Comitatus” (MORS Workshop, Homeland Security–Homeland Defense,2005, Baltimore, MD, November). http://www.mors.org/meetings/hls/presentations/visco.pdf (accessed 3 January 2009).


61Eugene P.Visco, “More Than You Ever Want to Know About Posse Comitatus” (MORS Workshop, Homeland Security–Homeland Defense, Baltimore, MD, November 2005), Slide 12. http://www.mors.org/meetings/hls/presentations/visco.pdf (accessed 3 January 2009).


63Ibid.

64Ibid., The Posse Comitatus Act contains no restrictions on the use of the federalized militia as it did on the regular Army. It is commonly believed, however, that National Guard units and personnel come under the Posse Comitatus Act when they are on federal active duty, and this interpretation is followed today.

65Ibid., The history of the law makes it clear that it was not intended to prevent federal police (for example, marshals) from enforcing the law.

66Clayton D. Laurie and Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders 1877-1945 (Washington, DC: U.S. Army Center of Military History, 1997), 21.

67Matt Matthews, The Posse Comitatus Act and the United States Army: A Historical Perspective (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 33; quoting Secretary of War George McCrary.


69John Patrick Finnegan, Military Intelligence (Washington, DC: U.S. Army Center of Military History, 1998), 9.

70Ibid., 11-12.

124

71Ibid., 23.

72Ibid., 102.

73Ibid., 22-25.

74Ibid., 25-26.

75Ibid.

76Ibid., 29


78Matthews, Matt, The Posse Comitatus Act and the United States Army: A Historical Perspective (Fort Leavenworth, KS: Combat Studies Institute Press, 2006), 39. See also Clayton D. Laurie and Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders 1877-1945 (Washington, DC: U.S. Army Center of Military History, 1997), 230; Secretary Baker unilaterally suspended the Posse Comitatus Act. The author found no record of Congress approving such measure, outside of the Dick Act o 1903, which allowed the Federal government to call up the National Guard for domestic disorders. The problem of the Dick Act is that President Wilson federalized the entire National Guard in July 1917, taking away the States’ ability to see them instead of the Army. See also Clayton D. Laurie and Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders 1877-1945 (Washington, DC: U.S. Army Center of Military History, 1997), 230, quoting the Glasser Report: Wartime Strikes and the Army, 25-28, RG 60, NARA.

79Clayton D. Laurie and Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders 1877-1945 (Washington, DC: U.S. Army Center of Military History, 1997), 231, quoted from Dowell, Military Aid to the Civil Power, 204-207 ad General Order No. 49 (Article 47, para. 383-389, Employment of Troops in the Enforcement of Laws,” Regulations of the United States, 1913 (Corrected to 15 April 1917) (Washington, DC:, Government Printing Office, 1917), 106-112.

80Clayton D. Laurie and Ronald H. Cole, The Role of Federal Military Forces in Domestic Disorders 1877-1945 (Washington, DC: U.S. Army Center of Military History, 1997), 231; The arrests were in spite of the Ex Parte Milligan Supreme Court doctrine of 1866.


125


83Ibid., 253.

84Ibid., 256.

85Ibid.

86Ibid., 258.

87Ibid., 261; This policy also extended to the lumber, mining and steel sectors.

88Ibid., 270.

89Ibid., 284.

90Ibid., 300.

91Ibid.



94Ibid., 424.

95Ibid., 331.


97Ibid.

98Ibid., 72.

99See Chapter 1 for definition.

100National Security Act of 1947, Public Law 235, 80th Cong., 1st Sess., 61 Stat. 496 (26 July 1947), § 105B.


126


103National Security Act of 1947, Public Law 235, 80th Cong., 1st Session, 61 Stat. 496 (26 July 1947), § 3.


105Ibid.

106Ibid., 11.

107Ibid.

108National Security Act of 1947, Public Law 235, 80th Cong., 1st Sess., 61 Stat. 496 (26 July 1947), § 105A.

109Ibid.

110Ibid., § 113.

1119/11 Commission, “The 9/11 Commission Final Report,” 107th Congress (2004), 401.

112Ibid., Theses publications listed here have as their central theme DoD support to the interagency: Joint Publication 3-07.4, Joint Counterdrug Operations, Joint Publication 3-08, Joint Interagency Operations, and Joint Publication 3-27, Homeland Defense.



115Ibid., 67.

116Ibid., 75.

117Ibid., 84.

118Ibid., 135

119Ibid., 83, 141.

120Ibid., 141.

127

121Ibid., 142; Scheips notes that General Abrams may not have known about the Delimitations Agreement the services signed with the FBI in the 1940s.

122Ibid., 142-143.

123Ibid., 143.

124Ibid.

125John Patrick Finnegan, Military Intelligence (Washington, DC: U.S. Army Center of Military History, 1998), 153; A pointer index contains the minimum identifying personal data on a subject investigated by an agency, and may include a synopsis of the nature of investigation, r arrest in law enforcement files. It is designed to key the inquirer to the agency that submitted the record to gain further information and potential develop joint investigations on the subject of the search.


127Ibid.

128Ibid.

129Ibid.

130Ibid.


132Ibid., 154-155.

133Ibid., 155.




137John Patrick Finnegan, Military Intelligence (Washington, DC: U.S. Army Center of Military History, 1998), 155

138Ibid., 206

128

139Ibid., 227.

140Ibid., 227-228.

141Ibid., 156.

142Ibid.

143Ibid. See also National Security Act of 1947, Public Law 235, 80th Cong., 1st Sess., 61 Stat. 496 (26 July 1947), § 105A.


145Ibid., 248.

146Ibid., 346-347; The federal agencies involved included the FBI, Border Patrol, Department of Justice Community relations, and Park Police; as well as the Washington Metropolitan Police and the National Guard.




150Ibid., 354-361.

151Ibid., 371-372.

152Ibid., 376; Deputy Secretary of Defense Paul H. Nitze at first raised questions to an Army request for 167 officer positions, but granted an increase of 100 positions due to the “importance” of intelligence. Nitze recognized that they would be used domestically as the Department of Justice did not do its part in producing domestic intelligence.

153Ibid., 378-379.

154Ibid., 380.

155Ibid., 376.

156John Patrick Finnegan, Military Intelligence (Washington, DC: U.S. Army Center of Military History, 1998), 156-157.

129


158Robert O'Harrow Jr., Interview with Chris Pyle, http://www.noplacetohide .net/pyle.html (accessed 30 November 2008).

159Ibid. Scheips noted the Justice Department and FBI rebuffed Army efforts to shiFort more of the domestic surveillance responsibilities to the Justice Department and FBI until the Pyle story broke in the press. Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945-1992 (Washington, DC: U.S. Army Center of Military History, 2005), 390.

160Ibid.

161Gerald K. Haines, “The Pike Committee Investigations and the CIA,” Studies in Intelligence (Winter 1998-1999), https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/ studies/winter98_99/art07.html (accessed 9 October 2008).

162Ibid.

163Ibid.

164Karl E. Campbell, Senator Sam Ervin And The Army Spy Scandal Of 1970-1971: Balancing National Security And Civil Liberties In A Free Society. http://www.cmhpf.org/ senator%20sam%20ervin.htm (accessed 13 February 2009), “Senator” section.

165Ibid., “President” section.

166Ibid.

167Ibid., “Hearings” section.

168Ibid.

169Ibid.

170Ibid.

171Ibid.


173Ibid., 393.

130

174Commission on CIA Activities Within the United States, Report to the President on CIA Activities Within the United States. (Washington, DC; Government Printing Office, 1975), 271-279.

175Ibid., 10.

176Ibid., 10-39; These recommendations are listed in Chapter three of the Rockefeller Commission Report, and also at the end of each of the chapters where the Commission found serious violations.

177Commission on CIA Activities Within the United States, Report to the President on CIA Activities Within the United States (Washington, DC; Government Printing Office, 1975), 40.

178Ibid., 22-23.

179Ibid., 23.

180Ibid., 18, 23

181Ibid.

182Gerald K. Haines, “The Pike Committee Investigations and the CIA,” Studies in Intelligence (Winter 1998-1999), https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/ studies/winter98_99/art07.html (accessed 9 October 2008).

183Ibid.

184Senate, Book III: National Security Agency Surveillance Affecting Americans, 94th Cong. 2nd Sess., 1976. http://www.icdc.com/~paulwolf/cointelpro/ churchfinalreportIIIj.htm (accessed 2 February 2009), Section I.

185Senate, Book I: Foreign and Military Intelligence, 94th Cong. 2nd Sess., 1976. http://www.aarclibrary.org/publib/church/reports/book1/html/ChurchB1_0182b.htm (accessed 14 February 2009), 356.

186Senate, Book III: National Security Agency Surveillance Affecting Americans, 94th Cong. 2nd Sess., 1976. http://www.icdc.com/~paulwolf/cointelpro/churchfinal reportIIIj.htm (accessed 2 February 2009), Section I.

187Ibid.

188Ibid., Section II.

189Laird v. Tatum , 408 U.S. 1 (1972), 1; The term “justiciable” according to MSN Encarta online dictionary,

131

http://encarta.msn.com/dictionary_1861623552/justiciable.html: 1) liable for trial: able or required to be in a court of law; 2) capable of being settled in court: able to be settled by applying the principles of law

190Laird v. Tatum, 408 U.S. 1 (1972), 1.

191Ibid., 5-6.

192Ibid., 6. The Supreme Court affirmed the Appellate Courts framing of the problem, in that the collection methods listed in the text were not different that what the news media employs to gather information. The Court also noted a lack of evidence for illegal searches, and no claim of physical arm, only a “might harm someone in the future at an unknown time.”

193Laird v. Tatum , 408 U.S. 1 (1972), 9.

194Ibid., 11-12; In recent years, this Court has found in a number of cases that constitutional violations may arise from the deterrent, or "chilling," effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. E.g., Baird v. State Bar of Arizona, 401 U. S. 1 (1971); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Lamont v. Postmaster General, 381 U. S. 301 (1965); Baggett v. Bullitt, 377 U. S. 360 (1964). In none of these cases, however, did the chilling effect arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging. For example, the petitioner in Baird v. State Bar of Arizona had been denied admission to the bar solely because of her refusal to answer a question regarding the organizations with which she had been associated in the past. In announcing the judgment of the Court, Mr. Justice Black said that "a State may not inquire about a man's views or associations solely for the purpose of withholding a right or benefit because of what he believes."

195Laird v. Tatum , 408 U.S. 1 (1972), 16-20.

196Ibid., 29-30.

197Ibid., 5-6.

198Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945-1992, (Washington, DC: U.S. Army Center of Military History, 2005), 434.

199Ibid., 435-436.

http://supreme.justia.com/us/401/1/case.html





132

200Ibid., 436-437.


202Ibid.

203Ibid., 18 U.S.C. § 1385 was intended *922 by Congress, according to the legislative history found in 7 Cong. Rec. 3845-3852, 4240- 4248, 4295-4304, and 4688, to eliminate the direct active use of federal troops by civil law enforcement officers. The prevention of the use of military supplies and equipment was never mentioned in the debates, nor can it reasonably be read into the words of the Act. . . . The congressional debates also clearly reveal that Congress did not intend by 18 U.S.C. § 1385 to prohibit the use of Army or Air Force materiel or equipment of whatever kind to execute the laws. The language of this interpretation and the conclusion reached is borrowed almost verbatim from, and therefore agrees with, the interpretation and conclusion on the same point reached by Judge Urbom in United States v. Jaramillo, 380 F.Supp. 1375, 1379 (1974). Congress did not intend to prevent the use of Army or Air Force materiel or equipment in aid of execution of the laws. Moreover, through enactment of the Economy Act of 1932, 31 U.S.C. § 686, Congress has provided extremely broad authorization for any executive department or independent establishment to place orders with any other willing department for materials, supplies, equipment, work, or service. A 1932 House Report of the 72d Congress set out the legislative intent of these Economy Acts: “A free interchange of work . . . will enable all bureaus and activities of the Government to be utilized to their fullest and in many cases make it unnecessary for departments to set up duplicating and overlapping activities of their own . . . . The War and Navy Departments are especially well equipped to furnish materials, work, and services for other department H.R.Rep. no. 1126, 72nd Cong., 1st Sess. (1932).” This Court agrees with the conclusion of Judge Urbom in United States v. Jaramillo, 380 F.Supp. 1375 (1974)


205Ibid., Words in [] are to amplify the active role and passive roles defined by the Court.

206Senate, Book III: National Security Agency Surveillance Affecting Americans, 94th Cong., 2nd Sess. (1976), Section III. http://www.icdc.com/~paulwolf/ cointelpro/churchfinalreportIIIj.htm (accessed 2 February 2009).

207Ibid., Section IV.

208Ibid.

209Ibid.

210Ibid.

211Ibid.

133

212Ibid., Section V.

213Ibid.

214Ibid.

215Ibid.

216Ibid.

217Ibid., Section VI.

218Ibid.

219Ibid., Section I.

220L. Britt Snyder, “Unlikely SHAMROCK–recollections from the Church Committee's Investigation of NSA,” Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans (1976). http://cicentre.com/ Documents/DOC_ChurchPike_Snider.htm (accessed 22 September 2008).

221Ibid., Items the NSA screened for included telegrams sent by foreign establishments in the United States or telegrams that appeared to be encrypted. The briefer stated the Secretary of Defense canceled the pro-gram earlier in the year as “the program just wasn’t producing very much of value.”

222Senate, Book III: National Security Agency Surveillance Affecting Americans, 94th Cong., 2nd Sess. (1976). http://www.icdc.com/~paulwolf/cointelpro/ churchfinalreportIIIj.htm (accessed 2 February 2009), Section I and III.


224Ibid., Section I. The Bureau of Narcotics and Dangerous Drugs (BNDD) became the Drug Enforcement Administration (DEA) in 1973 and is charged with enforcing Title 21 of the U.S. Code.

225Senate, Book III: National Security Agency Surveillance Affecting Americans, 94th Cong., 2nd Sess. (1976). http://www.icdc.com/~paulwolf/cointelpro churchfinalreportIIIj.htm (accessed 2 February 2009), Section IV.

226Ibid., Section I.



229NationMaster Encyclopedia, “Sam Ervin,” http://www.nationmaster.com/ encyclopedia/Sam-Ervin (accessed 13 February 2009).

134

230Foreign Intelligence and Surveillance Act of 1978, Public Law 95-511, 95th Cong. (25 October 1978), § 101.

231Ibid., § 103.

232Ibid., § 105.

233Ibid., § 102. The Attorney General must certify the proposed minimization procedures at least 30 days before commencement of the intercept to the Congressional Committees. With this done, the government can intercept for one year without a warrant, provided no U.S. person’s communications are intercepted. Due to the cumbersome requirements and a sometimes fickle Intelligence Committee, the FISA court is rarely used in recent times.

234Foreign Intelligence and Surveillance Act of 1978, Public Law 95-511, 95th Congress (25 October 1978), § 105.

235Ibid., § 109-110 and Title II.

236Ibid., § 201; The 9/11 Commission Final Report noted: “In addition to requiring court review of proposed surveillance (and later, physical searches), the 1978 Act was interpreted by the courts to require that a search be approved only if its “primary purpose” was to obtain foreign intelligence information. In other words, the authorities of the FISA law could not be used to circumvent traditional criminal warrant requirements.” (p.78) In effect, the Commission recognized that the FISA court was to be used only if a regular court order could not.

237National Commission on Terrorist Attacks Upon the United States. “The 9/11 Commission Final Report” (Washington, DC: Government Printing Office, 2004), 274; According to the statutory requirement under FISA, in order to obtain a FISA warrant on Moussaoui, the FBI needed to demonstrate probable cause that Moussaoui was an agent of a foreign power, a demonstration that was not required to obtain a criminal warrant.

238Ibid., 78-80; The Report also cites numerous times where the FBI, and to some extent the Department of Justice, misinterpreted the FISA law. The pages here give a sampling of that.

239National Public Radio (NPR), “Timeline: America’s War on Drugs.” http://www.npr.org/templates/story/story.php?storyId=9252490 (accessed 9 October 2008.

240Phillip B. Gleason, “The War on Drugs: Unending LIC or Attainable Security.” http://www.globalsecurity.org/military/library/report/1993/GPB.htm (accessed 17 February 2009.

241The National Defense Authorization Act of 1989, Public law 100-456, 100th Cong.s, 2nd Sess., (29 September 1988), Title XI.

135

242Ibid.

243Donald J. Mabry, “Military Drug Interdiction in the Caribbean Basin,” Conflict Quarterly 13, no. 2 (Spring 1993), 49.

244Ibid., 50. The Act does preclude military personnel from participating in searches, seizure and arrest activities normally performed by law enforcement, unless those personnel are already authorized y law, such as the Coast Guard.

245The National Defense Authorization Act of 1989, Public law 100-456, 100th Cong., 2nd Sess., (29 September 1988), Title XI.

246Ibid.

247Ibid.

248Ibid.

249Ibid.

250National Guard Bureau, NGR 500-2, “National Guard Counterdrug Support” (Washington, DC: Department of the Army and Air Force, 1997), Section 6-14.

251The National Defense Authorization Act of 1989, Public Law 100-456, 100th Cong., 2nd Sess., (29 September 1988), Title XI.

252Ibid., Title XI.

253News4 (TV), “Illegals From Terrorist Nations are Crossing the Border Into Arizona.” http://www.kvoa.com/Global/story.asp?S=2172749 (accessed 18 February 2009.

254Ibid., News 4 cited the report in the Tombstone Tumbleweed, the local newspaper in Tombstone Arizona, unknown date of the paper in 2004.

255News 4 (TV), “Illegals From Terrorist Nations are Crossing the Border Into Arizona.” http://www.kvoa.com/Global/story.asp?S=2172749 (accessed 18 February 2009); Bonner has knowledge of the details of who agents are detaining and what they are finding out about them.

256USA PATRIOT Act of 2001, Public Law 107-56, 107th Cong., 1st Sess. (26 October 2001), § 203. See also Foreign Intelligence Surveillance Act of 1978, Public Law 95-511, 95th Cong.s, 2nd Sess. (25 October 1978), § 101.

257Ibid., § 203.

136


259USA PATRIOT Act of 2001, Public Law 107-56, 107th Cong., 1st Sess., (26 October 2001), § 902. See also9/11 Commission, “The 9/11 Commission Final Report,” 107th Congress (2004), 46-48.

260USA PATRIOT Act of 2001, Public Law 107-56, 107th Cong., 1st Sess. (26 October 2001), § 903

261Ibid., § 907.

262Intelligence Authorization Act for Fiscal Year 2003, Public Law 107-306, 107th Cong., 2nd Sess. (27 November 2002), § 601-602.

263Ibid., § 603-604.

264Report release date is not in the actual report but posted on the 9/11 Commission website, http://www.9-11commission.gov/ (accessed 18 February 2009).

2659/11 Commission, “The 9/11 Commission Final Report,” 107th Congress (2004), 86-87.

The intelligence components involved included from the Department of Defense: National Security Agency, National Geospatial Agency, Defense Intelligence Agency, National Reconnaissance Office, and the intelligence components of the Army, Navy, Air Force, and Marines. In addition the other federal agencies the Commission looked at include the Central Intelligence Agency, the Federal Bureau of Investigation–intelligence community and national security, The State Department–Bureau of Intelligence and Research, Treasury Department–intelligence component, Department of Energy–Office of Intelligence and Counterintelligence, Coast Guard–Office of Intelligence, and the Department of Homeland Security–Directorate of Intelligence Analysis and Infrastructure Protection.

266Ibid., 88.

267Ibid., 87.

268Ibid., 87-88.

269USA PATRIOT Act of 2001, Public Law 107-56, 107th Cong.s, 1st Sess. (26 October 2001), §207, 214, 225.

2709/11 Commission, “The 9/11 Commission Final Report,” 107th Congress (2004), 268-271.

271Ibid., 271.

137

272Ibid., 91.

273Ibid.

274Ibid., 352, 371.

275Ibid., 187.

276Ibid., 385.

277Ibid., 392.

278Ibid., 393.


280Ibid., 394.

281Ibid.

282Ibid., 396.

283Ibid., 399-403.

284Ibid., 403.

285Ibid., 401.

286United States v. Red Feather, 392 F.Supp. 916 (D.C.S.D. 1975); Moreover, through enactment of the Economy Act of 1932, 31 U.S.C. § 686, Congress has provided extremely broad authorization for any executive department or independent establishment to place orders with any other willing department for materials, supplies, equipment, work, or service. As far back as 1915 Congress established procedures for the War and Navy Departments to procure or perform services for each other. 38 Stat. 1084 (1915). In 1920 these procedures were extended to any government department which procured by purchase or manufacture stores or materials, or performed services for any other department. 41 Stat. 613 (1920). A 1932 House Report of the 72d Congress set out the legislative intent of these Economy Acts: “A free interchange of work . . . will enable all bureaus and activities of the Government to be utilized to their fullest and in many cases make it unnecessary for departments to set up duplicating and overlapping activities of their own . . .. The War and Navy Departments are especially well equipped to furnish materials, work, and services for other department Whenever such materials, work and services can be furnished at less cost your committee believes that private concerns should not be called upon to furnish, do, and perform what Government agencies can do for each other. H.R.Rep. No. 1126, 72d Cong., 1st Sess. (1932).” This Court agrees with the conclusion of Judge Urbom in United States v. Jaramillo, 380 F.Supp. 1375 (1974).

138


288The High Intensity Drug Trafficking Area program is a congressionally mandated initiate of the Office of national Drug Control Policy. Began in 1996, the HIDTA program seeks to encourage collaboration and intelligence sharing between federal, state and local law enforcement agencies conducting narcotics investigations. In 2006, the ONDCP launched the Domestic Highway Enforcement initiative, as the ONDCP understood that the roads are the lines of communication for drug and other illegal activity. The DHE focus is on all crime, but as narcotics are mostly moved by road, it has a greater impact on the flow of narcotics, as well as the flow of drug proceeds back to suppliers in the Southwestern U.S.

2899/11 Commission, The 9/11 Commission Final Report, 107th Congress (2004), 407-410.

290Ibid., 417.

291Intelligence Reform Act of 2004, Public Law 108-458, 108th Cong., 2nd Sess. (17 December 2004), § 1016.

292Ibid.

293Ibid., § 1021.

2949/11 Commission, The 9/11 Commission Final Report, 107th Congress (2004), 399-400.


296Ibid., § 1023.

297Ibid.

298Ibid., § 1041.

299Ibid.

300Department of Defense, DoD Directive 5143.01, Undersecretary of Defense for Intelligence (Washington, DC: Government Printing Office, 2005).

301Joint Chiefs of Staff, Joint Publication 3-08, Interagency, Intergovernmental Organization, and Non-governmental Organization Coordination During Joint Operations, Volume I (Washington, DC: Joint Education and Doctrine Division, 17 March 2006), I-1.

139

302Intelligence Reform Act of 2004, Public Law 108-458, 108th Cong., 2nd Sess. (17 December 2004), Title VII, § 7101. 1) Long-term success in the war on terrorism demands the use of all elements of national power, including diplomacy, military action, intelligence, covert action, law enforcement, economic policy, foreign aid, public diplomacy, and homeland defense. 2) To win the war on terrorism, the United States must assign to economic and diplomatic capabilities the same strategic priority that is assigned to military capabilities.

303Joint Chiefs of Staff, Joint Publication 3-27, Homeland Defense (Washington, DC: Joint Education and Doctrine Division, 12 July 2007), I-2.

304Ibid., § 1074.

3059/11 Commission, “The 9/11 Commission Final Report,” 107th Congress, (2004), 408-410.

306Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders 1945-1992, (Washington, DC: U.S. Army Center of Military History, 2005), 394.

307Commission on CIA Activities Within the United States, Report to the President on CIA Activities Within the United States (Washington, DC; Government Printing Office, 1975), ix-xi.

308Executive Order no. 11905, Federal Register 41 (18 February 1976): 7703, § 4.

309Ibid.

310Department of Defense, DoD Directive 5200.27: Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense (Washington, DC: Government Printing Office, 1980).

311Executive Order no. 11905, Federal Register 41 (18 February 1976): 7703, § 1.

312Ibid., § 5.

313Ibid.

314Executive Order no. 12333, Federal Register 73 (4 August 2008), Part 1.1.

315Ibid.

316Ibid., Part 2.3. See also Intelligence Reform Act of 2004, Public Law 108-458, 108th Con., 2nd Sess. (17 December 2004), § 1052.

317Laird v. Tatum , 408 U.S. 1 (1972), 6.

140

318Department of Defense, DoD Directive 5525.5: Department of Defense Cooperation with Civilian Law Enforcement Officials (Washington, DC: Government Printing Office, 1986), 2.


320DEA–El Paso Intelligence Center (EPIC), brief given to Midwest High Intensity Drug Trafficking Area- Domestic Highway Enforcement Regional Coordination Committee, El Paso, TX, 2 October 2008.

321Department of Defense, DoD Directive 5240.1: Department of Defense Intelligence Activities (Washington, DC: Government Printing Office, 1988), 1.

322Department of Defense, DoD Directive 5525.5: Department of Defense Cooperation with Civilian Law Enforcement Officials (Washington, DC: Government Printing Office, 1986), 2, 9-10, 18-19.

323Title 18, U.S. Code, § 1385; Originally passed as the Knott Amendment to the 1878 Army Appropriations bill, 45th Cong., 1st Sess. (1877); Codified under Title 18 U.S. Code in 1956.


325Ibid., Part 2.3.

326Department of Defense, DoD Directive 5240.1: Department of Defense Intelligence Activities (Washington, DC: Government Printing Office, 1988), 2, 4.

327Department of Defense, DoD Directive 5143.01: Under Secretary of Defense for Intelligence (Washington, DC: Government Printing Office, 2005), Enclosure 2.


329Intelligence Reform Act of 2004, Public Law 108-458, 108th Cong., 2nd Sess. (17 December 2004), § 5401 and 7401.

330The Economy Act of 1932, 31 U.S.C. § 1535. 45th Cong., 2nd Sess. (30 June 1932).

331United States v. Red Feather, 392 F.Supp. 916 (D.C.S.D. 1975).

332Department of Defense, DoD Directive 5525.5: Department of Defense Cooperation with Civilian Law Enforcement Officials (Washington, DC: Government Printing Office, 1986), 2, 9-10, 18-19.

141

333Dr. Steven Bucci, Deputy Assistant Secretary of Defense, Homeland Defense and America’s Security Affairs, Speech to the Command and General Staff College – Intermediate Level Education class 09-001, given 31 October 2008.


335Military Support for Civilian Law Enforcement Agencies, Public Law 97-86. 97th Cong., 1st Sess., 10 U.S.C. § 371 (1 December 1981).

336Executive Order no. 12333, Federal Register 73 (4 August 2008), Parts 2.4 and 3.5; The radio direction finding is specifically mentioned in Part 3.5. The principle behind the ground surveillance radars and REMBASS is they watch a specific geographic area where no reasonable expectation of privacy exits. The legal term for where these systems would be employed is call the open field doctrine”

337Department of Defense, DoD Regulation 5240.1-R: Procedures Governing the Activities of DoD Intelligence Components That Affect United States Persons (Washington, DC: Government Printing Office, 1982), 38-39; This regulation has not been updated since 1982, and has not kept up with technological innovations within the military, let alone the application to the narcotics and terrorism fights.

338Department of Defense, DoD Directive 5525.5: Department of Defense Cooperation with Civilian Law Enforcement Officials (Washington, DC: Government Printing Office, 1986), 18-19.

339The National Defense Authorization Act of 1989, Public law 100-456, 100th Cong., 2nd Sess. (29 September 1988), Title XI. See also Enclosure 4 to DoD Directive 5525.5, paragraph E4.1.6.2.4.

340Intelligence Reform Act of 2004, Public Law 108-458, 108th Cong., 2nd Sess. (17 December 2004). See also Enclosure 4 to DoD Directive 5525.5, paragraph E4.1.6.2.4 and paragraph E4.3.2.1.

341Department of Defense, DoD Directive 5525.5: Department of Defense Cooperation with Civilian Law Enforcement Officials (Washington, DC: Government Printing Office, 1986), 17-18, 21.

342Department of Defense, DoD Regulation 5240.1-R: Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons (Washington, DC: Government Printing Office, 1982), 2.

343Ibid., 13.

344Ibid.

345Ibid., 18.

142

346National Guard Bureau, NGR 500-2: National Guard Counterdrug Support (Washington, DC: Government Printing Office, 2000), 10.

347Department of Defense, DoD Regulation 5240.1-R: Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons (Washington, DC: Government Printing Office, 1982), 16-17.

348Ibid., 16-18.

349Laird v. Tatum , 408 U.S. 1 (1972). See also United States v. Red Feather, 392 F.Supp. 916 (D.C.S.D. 1975).


351Ibid., 16.

352Department of Defense, Joint Publication 3-07.4, Joint Counterdrug Operations (Washington, DC: Government Printing Office, 2007), I-5-6.


354Department of the Army, AR 381-10: U.S. Army Intelligence Activities (Washington, DC: Government Printing Office, 2007), 7.

355 Ibid., 20.


357Ibid., 12.


359Ibid.

360National Guard Bureau, NGR 500-2: National Guard Counterdrug Support (Washington, DC: Government Printing Office, 2000), 20-23.


143


363Department of the Army, AR 381-10: U.S. Army Intelligence Activities (Washington, DC: Government Printing Office, 1984),6.



366Ibid. 38.

367Ibid.

368Ibid., 39.

369Oliver v. United States, 466 U.S. 170 (1984)





374Department of Defense, Joint Publication 3-07.4, Joint Counterdrug Operations (Washington, DC: Government Printing Office, 2007), I-5-6.


376Dr. Steven Bucci, Deputy Assistant Secretary of Defense, Homeland Defense and America’s Security Affairs, Speech to the Command and General Staff College, Intermediate Level Education Class 09-01, Fort Leavenworth, KS, 31 October 2008.


144

378Ibid.


380Ibid., 56-57.

381Ibid., 56.

382Ibid., 57.

383Intelligence Reform Act of 2004, Public Law 108-458, 108th Cong., 2nd Sess.n (17 December 2004), § 1051.

384Department of Defense, Joint Publication 3-07.4, Joint Counterdrug Operations (Washington, DC: Government Printing Office, 2007), I-1.

385Richter, Paul, “Military Easing Its War on Drugs,” Los Angeles Times, 20 October 2002. http://articles.latimes.com/2002/oct/20/world/fg-mildrugs20 (accessed 14 March 2009).

386The White House, National Security Decision Directive 221: Narcotics and National Security. Washington, DC (8 April 1986), 1. http://www.fas.org/irp/offdocs/ nsdd/nsdd-221.htm (accessed 14 March 2009).

387Ibid., Fact Sheet.

388Department of Defense, Joint Publication 3-07.4, Joint Counterdrug Operations (Washington, DC: Government Printing Office, 2007), I-11.

389Ibid., II-11.

390Ibid., See also Intelligence Reform Act of 2004, Public Law 108-458, 108th Cong., 2nd Sess. (17 December 2004), § 7202 and inferred under § 1021.

391Department of Defense, Joint Publication 3-27, Homeland Defense (Washington, DC: Government Printing Office, 2007), I-1.

392Ibid., I-2.

393National Security Act of 1947, Public Law 235, 80th Cong., 1st Sess., 61 Stat. 496 (26 July 1947), § 402.


395Ibid.

145





400Ibid.

401Ibid., I-8.

402Department of Defense, Joint Publication 3-27, Homeland Defense (Washington, DC: Government Printing Office, 2007), IV-2.

403Ibid., VII-2.

404Ibid., IV-5.

146

CHAPTER 5

ANALYSIS OF CAPABILITIES AND REQUIREMENTS

Introduction

In Chapter 4, this thesis showed that by statutory and case law, military

intelligence in a Title 10 status can support domestic law enforcement with passive

measures in counterdrug and counterterrorism operations. The limiting factor to this is

Department of Defense (DoD) policy, which has not been updated since 1984. Next to

consider is what military intelligence capabilities can be used domestically, and what

military intelligence capabilities does law enforcement desire to use domestically in

counterdrug and counterterrorism operations. The research found that for all the

capabilities that military intelligence can legally use domestically, law enforcement

desires to use each them.

This chapter has two sections. The first deals with military intelligence

capabilities in personnel, analytical expertise, linguists, intelligence training, intelligence

systems, military intelligence information, and military benefit to providing the

aforementioned items. The second section identifies what law enforcement desires

assistance from the military intelligence community in support of their counterdrug and

counterterrorism operations.

Military Intelligence Capabilities

Secondary Research Question No. 2: What does the military intelligence

community have to offer law enforcement by way of support in the counter–narco–

terrorism (CNT) and War on Terror (WOT) fights?

147

Military intelligence can support law enforcement with passive measures in

counterdrug and counterterrorism operations domestically. The military intelligence

component possesses several means of providing this support. Areas military intelligence

can support with passive measures include personnel for analysis, intelligence related

training, intelligence collection platforms and database programs, and foreign intelligence

information. Lastly, this paper will look at the benefit the military would derive from the

above mentioned support.

Personnel

The first and foremost area military intelligence can support law enforcement is

through intelligence planning and analytical support. This position is supported in

principle by GEN Petraeus, who stated to the Intermediate level Education Course 09-01

at Fort Leavenworth the Army needs to look at assigning personnel to the interagency to

support the interagency and gain understanding of the interagency process.1 The 9/11

Commission final report identified intelligence capability as a critical shortfall in the

interagency outside of DoD, especially in the Federal Bureau of Investigation (FBI).2 The

Intelligence Reform and Surveillance Act of 2004 also called on the FBI to improve its

intelligence capability.3 This is in addition to the counterdrug support to the interagency

authorized by the National Defense Authorization Act of 1989.4 The military intelligence

component possesses a large cadre of trained analysts that already possess the top-secret

security clearance required by the FBI. Clearance issues are handled by the Director of

Central Intelligence Directive No. 6/4, which stated federal agencies are to honor same

level security clearances issued by another federal agency, with exceptions granted on a

148

case by case basis.5 An Office of Management and Budget memorandum extended the

Directive 6/4, incorporated into Executive Order 12968, to special access programs.6

The Army possesses several military occupational specialties (MOS) that qualify

to perform an analytical function. The primary MOS are the 35D military intelligence

officer, 350F All source intelligence warrant officer, and the 35F intelligence analyst.

The counterintelligence MOS of 35E Counterintelligence officer, 351E

counterintelligence warrant, and 35L counterintelligence agent can also be used, as they

undergo extensive link analysis training as part of their MOS schooling. These analysts

possess the requisite knowledge and capacity to build analytical products regarding

narcotics and terrorist organizations. The vast majority of narcotics and terrorism cases

investigated by federal agencies tie to international organizations, as this is the federal

agencies’ mandate to pursue up the chain of command and dismantle narcotics and

terrorist organizations. Many of these cases tie in to areas the U.S. Military is presently

deployed to, or may be deployed to in the future.

Intelligence planning as defined in Joint Publication (JP) 3–27 is referred to as

counterdrug intelligence preparation for operations and entails “an intellectual process of

analysis and evaluation that is modified from the traditional military joint intelligence

preparation of the operational environment.”7 This process identifies the most likely

trafficking routes and venues and the most efficient way to employ resources to identify,

track and assist law enforcement to arrest traffickers.8 This process works in

counterterrorism operations as well, as the groups have similar methodologies to execute

operations. The process follows the military intelligence preparation of the environment

model, and applies the model to the facets of narcotics trafficking, terrorism, and alien

149

smuggling analysis. Military intelligence analysts can use this process to identify specific

routes and some pattern of life analysis for specific drug or terrorist organizations based

on the type of support the law enforcement agency (LEA) requested, freeing up the law

enforcement officers and agents to do more field investigating.

Along with this intelligence planning follows collection planning. The

intelligence planning identifies gaps in intelligence. The next step is to develop a

collection plan to fill those gaps in intelligence. Military intelligence develops collection

plans to answer information gaps on a regular basis from the tactical level through

strategic level. Once the commander approves the plan, he or she takes ownership of it,

and directs the military intelligence community to execute the approved plan. Assigned

military analysts then assist in answering the collection plan requirements, using open

source information, aerial and ground reconnaissance assets, and intelligence databases to

build the intelligence picture and prepare it for the supported LEA to disseminate it. This

model fits with what JP 3-07.4 calls for in counterdrug operations.9 In the context of

support to domestic law enforcement, the LEA supervisor is the approver of the

collection plan after consulting with the agency’s legal counsel, United States Attorney,

or district attorney. The military analysts then carry out the plan under the supervision of

the LEA supervisor or designated law enforcement officer.

The military intelligence community possesses a robust linguist capability, a

shortfall of the domestic law enforcement and intelligence community. The Intelligence

Reform and Surveillance Act of 2004 recognized the need for linguist support in the

interagency and intelligence agencies and called for the Director of National Intelligence

to identify linguist shortfalls and develop a plan to fill these shortfalls.10 The military

150

intelligence community possesses language skills for most areas that terrorist

organizations and narcotics trafficking organizations operate in that affect the United

States.

Training

Current DoD regulations limit advanced high intensity training, such as tactics,

techniques, and procedures for arrest and seizure of a criminal subject, sniper training,

military operations in urban terrain, close quarters combat training and like-type

training.11 However, the regulations do allow for providing expert advice and training

that does not involve a likelihood of contact with a hostile U.S. person.12 Military

intelligence units have training packages for include collection management, intelligence

preparation of the environment in an urban environment, counterintelligence,

antiterrorism and counterterrorism intelligence training.

Systems

The military possesses several systems of benefit to law enforcement in

counterdrug and counterterrorism operations, and at the same time provide realistic

training for military intelligence units between deployments. These systems include

Unmanned Aerial Vehicles (UAV), remote battlefield sensor system, radar, intelligence

analysis programs, and the Secure Internet Protocol Network (SIPRNet).

Congress recognized the utility of UAV systems when it mandated that the

Department of Homeland Security develop a plan to monitor the Southwest border using

the vehicles.13 A UAV system uses a terminal and joystick to fly an aircraft with no

human on board. A live feed from the camera on board the UAV is on the pilot’s screen,

151

and the pilot can manipulate the camera or other sensors as well as the aircraft. These

sensor feeds can be digitally recorded for later use in court or other operations. The

UAVs give utility to DEA as well, such as monitoring potential clandestine laboratory

sites and marijuana grow sites in remote areas of national parks in the western United

States, where it is difficult to access or maintain surveillance without being detected by

drug traffickers.

Complementary to the UAV are remote battlefield sensors (REMBASS) to

monitor drug or alien smuggling paths in terrain that is difficult to access. Law

enforcement can use these REMBASS sensors to alert a UAV into an area where

REMBASS detected activity. Thus, REMBASS allows for economy of effort by

monitoring drug and alien routes not heavily used, providing time for another detection

system or law enforcement personnel to reach the area before the traffickers leave the

area.

REMBASS contain three types of sensors: magnetic, seismic and passive

infrared.14 The magnetic sensors detect vehicles and persons carrying ferrous metal, the

number of vehicles passing the system, and can give direction of travel.15 This type is

good for vehicular routes or where suspected arms smuggling routes are located. Seismic

sensors detect vibrations of vehicular and human movement, and would be good for trails

utilized by pack mules or persons with backpacks carrying contraband.16 Passive infrared

sensors detect vehicles and personnel, number of vehicles passing the system, and give

direction of travel.17 Newer sensors can also detect tunneling activity, and would be

useful along the borders where drug trafficking organizations tunnel under the border to

import their narcotics into the United States.

152

Relocatable Over the Horizon Radar (ROTHR), ground based radar (GBR), and

ground surveillance radar (GSR) provide long range coverage of approaches where few

line of sight obstacles exist. ROTHR are good for sea approaches, or use in the Great

Lakes region to monitor traffic entering the United States from Canada.18 GSR and GBR

are effective where terrain is generally flat, or even, such as along the northern border

and in places along the southern border of the United States. Depending on the terrain,

the radar can give roughly thirty minutes of monitoring and warning to queue other

intelligence assets or law enforcement to the area. These radars have utility in both

counterdrug and counterterrorism operations.

Organization Risk Analyzer (ORA) is a software program designed by Carnegie

Mellon University, Institute for Software Research International, and the Center for

Computational Analysis of Social and Organizational Systems for the military’s use in

mapping terrorist and insurgent group organizational relationships.19 The software is

designed to identify critical links or vulnerabilities in an organization to focus targeting

of resources to disrupt the entire organization through as few links as possible by

identifying relationships among its members, resources, knowledge and tasks.20

Information

The SIPRNet is both a system and a source of information that houses both

counterdrug and counterterrorism information of use to law enforcement. The system

provides a secure network to the SECRET level for information flow within and between

the interagency. Both the Drug Enforcement Administration (DEA) and the FBI can

access through a portal on their internal secure systems. With the system already built

and operational, the Department of Homeland Security could have utilized this network

153

under the Economy Act as well, saving the taxpayers 337 million dollars.21 The Deputy

Assistant Secretary of Defense for Counternarcotics authorized the SIPRNet system to be

emplaced in thirty-two High Intensity Drug Trafficking Area (HIDTA)–Investigative

Support Centers in 2003 to provide the interagency access to DoD classified narcotics

and terrorist information.22

Military Benefit

The military gains several benefits to this support. First, it complies with federal

law to support the interagency in the counterdrug and counterterrorism fights. Second, by

supporting the interagency in these endeavors, military personnel build long term

relationships they can utilize when deployed as they need interagency support. Third, by

supporting the interagency with analysts, the military intelligence analyst can maintain

perishable skills in supporting counterinsurgency operational analysis, as terrorism and

narcotics trafficking employ similar skill sets. Examples of this are linguists who support

counterdrug and counterterrorism operations get realistic live training to maintain and

increase their language proficiency; counterintelligence officers that are able to learn

from law enforcement tactics, techniques and procedures to better the skill set for use

overseas; and UAV and radar operators are able to do real world mission support to

maintain their skills between deployments on live operations. Fourth, due to reciprocity,

the military can acquire early warning of potential threats to its personnel and facilities

globally. Finally, DoD can claim credit for saving government resources under the

Economy Act, and use that argument for continued stable funding.

To expand on the use of counterintelligence agents in a passive role as analysts,

these agents can also derive some benefit in working analytical support to law

154

enforcement. If working in support of tactical intelligence support to another federal

agency, the counterintelligence analysts can gain some insight from the civilian law

enforcement officers relating to their primary mission of counterintelligence. This insight

would come from discussions with the supported law enforcement officers only, not by

conducting or assisting in interviews with suspects, or actual law enforcement field

operations.

Law Enforcement Support Requirements

Secondary Research Question No. 3: How does law enforcement visualize using

military intelligence resources in counterdrug and counterterrorism operations?

By law, military intelligence can support law enforcement with passive measures

in counter–narco–terrorism (CNT) and the War on Terrorism (WOT). The military

intelligence community has many capabilities that meet the passive measure definition

laid out by federal case law to support law enforcement in CNT and the WOT. Law

enforcement has definite ideas on how they want to utilize military support, which will be

covered next.

James Capra, Special Agent in Charge (SAC) of the Dallas Field Division, Drug

Enforcement Administration (DEA), spoke to the Command and General Staff College’s

Intermediate Level Education class regarding interagency support and ties between drug

trafficking and terrorism.23 After his remarks, SAC Capra agreed to an interview to delve

further on the subject of military intelligence support to law enforcement on 31 October

2008.

David Barton, Director of the Midwest HIDTA consented to an interview on 25

November 2008 to get his views on military intelligence support to law enforcement. The

155

HIDTA program is a federally funded initiative that seeks to coordinate federal, state,

local, and tribal law enforcement drug efforts and intelligence sharing by providing

coordination, equipment, technology, finances, and intelligence support to combat drug

trafficking in areas designated by Congress.24 Director Barton served many years as the

chair of the HIDTA intelligence subcommittee, which worked intelligence policy issues

relating to the thirty-three HIDTAs around the United States.

Finally, three supervisory special agents with the Kansas City, Missouri, FBI

office agreed to be interviewed on the subject of military support to law enforcement.

Supervisory Special Agent (SSA) Dean Yannacito is the terrorism group supervisor, and

works the Joint Terrorism Task Force in Kansas City. SSA Stephen Bergeman supervises

the intelligence group, which provides support to the terrorism and other FBI groups in

the Kansas City FBI office. Special Agent (SA) Ben McIntosh supervises the FBI

intelligence group assigned to the Midwest HIDTA, which provides general support in

conjunction with the Midwest HIDTA to law enforcement agencies in Missouri, Kansas,

Iowa, Nebraska, North Dakota and South Dakota.

All supervisors stated military intelligence analysts are the most useful to their

respective organizations. Director Barton and the FBI supervisors caveat this with that

the analysts need to be at the agency ideally for three years to be useful.25 Director

Barton mentioned analyst retention as the largest hindrance to using military analysts

effectively, citing National Guard military analysts averaging eighteen to twenty-four

months in position, where he would like thirty-six. Director Barton understands the

deployment requirements and is not addressing that as a cause for shorter assignments,

but the National Guard’s desire to move personnel around to other agencies.26 The FBI

156

supervisors discussed whether it could be done in less time, but SSA Yannacito stated

that one year is not worth the effort.27 SAC Capra attributed DEA’s success in

counterdrug to accurate real-time intelligence and analysis of information, and

recognized the military’s involvement in that process, specifically the National Guard.28

SAC Capra stated DEA does see relevance to using SIPRNet data, but needed to build a

wall around it so it does not enter discovery.29 This describes the reputation that military

intelligence analysts in general already have with the interagency, specifically domestic

law enforcement. Military intelligence possesses a robust capability to meet this need in

domestic counterdrug and counterterrorism operations.

As far as other support the supervisors saw utility in, the answers diverged. SAC

Capra thought the Fusion Centers needed to be combined with DoD intelligence systems,

since DoD operates in many drug source areas and terrorists safe havens.30 SAC Capra

noted that terrorist organizations are in reality part terrorist, part drug traffickers.31 SAC

Capra gave an example of forty metric tons of cocaine seized in Africa from a drug

trafficking group that operates in the same area as a foreign terrorist organization, vying

for the same money.32 SAC Capra asserted that most of the time the terrorist and

narcotics traffickers join together in alliances mutually beneficial to them, with the result

that they are able to garner support and hurt the United States.33 SAC Capra stated the

various intelligence disciplines, such as signals intelligence, human intelligence, and

imagery intelligence, provided a wealth of actionable intelligence for his agents to act on,

and should be rolled into the domestic fusion centers.34 SAC Capra also desired to see

more predictive intelligence analysis in law enforcement to generate more intelligence

led operations, but acknowledged that predictive analysis requires a paradigm shift within

157

law enforcement accustomed to developing historical collaboration of events.35 SSA

Bergeman mentioned DoD knowledge of building intelligence reports and analytical link

charting, terrorist financing and terrorist organizational structure identification.36 SA

McIntosh and SSA Yannacito mentioned linguist support, as FBI is critically short of

trained linguists, for case support and summaries related to terrorism around the world.37

Director Barton mentioned ground reconnaissance as a capability that he did not need,

due to potential liabilities.38

Director Barton tied training to intelligence analysts, and thought of several types

of training beneficial to law enforcement. Director Barton mentioned two types of

training as beneficial, that in leadership and intelligence.39 Director Barton mentioned

leadership training at all levels from squad level though command, as the military teaches

the ability to direct people into harm’s way, which would be beneficial to law

enforcement.40 Director Barton also mentioned the military excelled at theory and

strategic and long range planning, which law enforcement needs to improve on, so law

enforcement would welcome that type of training. SAC Capra mentioned intelligence

planning and intelligence preparation of the environment training as beneficial to his

organization.41 SSA Bergeman thought the FBI would gain from training on the

capabilities the military can provide, along with the legal parameters the military needs to

operate in.42 SA McIntosh echoed this, and stated the National Guard briefing in

counterdrug support capabilities assisted them in planning operations. The National

Defense Authorization Act of 1989 required DoD to list out capabilities to law

enforcement on an annual basis, but this capabilities training does not filter down to the

middle managers who have the need to employ DoD support.43

158

Concerning intelligence type training, Director Barton specifically mentioned

target identification as critical, foreign intelligence training, intelligence, surveillance and

reconnaissance (ISR) and sensor training, and intelligence programs like ORA.44 SA

McIntosh desired training on the military intelligence process, as well as exploitation,

link charting, graphing, and computer website skills.45 SSA Bergeman concurred on

analytical training.46 SSA Yannacito mentioned GIS mapping, and commodity and

financial analysis with associated charting as a need.47

Based on the desire for ISR training, the discussions ventured to what military

intelligence sensors and capabilities the supervisors thought would be useful to their

overall mission. SAC Capra discussed surveillance of approaches to the United States via

sea with the ROTHR and air with airspace command and control systems, which the

military is already doing. SAC Capra would like more land based monitoring of the

southwest border area.48 Director Barton would embrace UAV, cameras, RAID, and

radar, as the Midwest HIDTA is rural and covers the largest land area of any one

HIDTA.49 SSA Yannacito echoed the requirement for UAV due to the vast open areas

within the Kansas City FBI region.50 SSA Bergeman also mentioned assets to monitor the

border, as the northern border is less patrolled than the southern border in regards to

possible terrorist smuggling.51 SA McIntosh questioned if military communications

intercept could be used for triangulation purposes.52 Director Barton stated that

information collected should be reposed into agency databases, as information collected,

processed and analyzed belongs to the agency supported, not the military.53 Director

Barton concluded that going with the premise that the law regulates military assets used

159

in criminal justice, agency rules should apply for use of the assets, consistent with 28

Code of Federal Regulations (CFR), part 23, governing criminal intelligence.54

As the conversations discussed terrorism, the issue of access to DoD terrorism

data came up. SA McIntosh requested a Standard Operating Procedure document on what

the FBI can do with SIPRNet, how to use it effectively, and the best sites to pull data

from.55 He noted the FBI’s biggest problem is knowing what the capabilities of DoD

systems are, so they can know how to tie it into their mission.56 Director Barton

discussed the utility of the relatively new DoD initiative of opening up their classified

intelligence database on foreign nationals to law enforcement to use for counterdrug and

counterterrorism. Director Barton is not sure of the value to criminal justice, but he

admits no one has really attempted to demonstrate that value either.57 SSA Yannacito tied

intelligence sharing into SIPRNet, stating we all need to do a better job in this.58 Director

Barton stated that if the military follows 28 CFR, part 23 guiding federal, state and local

intelligence sharing, there will be no risk of abuse of independent collection on U.S.

persons, as law enforcement also must follow 28 CFR, part 23.59 The key is to operate in

support of an LEA.

Director Barton further elaborated on the legal issues of military conducting

independent collection on U.S. persons. Director Barton stated the same stigma of

military collection applies to law enforcement as well, and that law enforcement is sued

more than the military is regarding independent collection.60 Director Barton cited the

Washington–Baltimore HIDTA and Maryland state police collecting information on

demonstrators as an example of the law enforcement collection controversy regarding

U.S. persons.61 Director Barton concluded by stating that law enforcement has rules and

160

language in place; if military follows these rules and can take direction and partnership

with law enforcement; it would be a good thing.62

Summary and Conclusions

Military intelligence passive measures can support law enforcement in

counterdrug and counterterrorism. The research in this chapter and Chapter 4 bears this

out.

The first section in this chapter covered what military intelligence capabilities are

available to support law enforcement in counterdrug and counterterrorism operations

domestically. This review showed several areas where military intelligence possess

capabilities to support law enforcement domestically within the parameters set by

statutory and case law. This review looked at personnel skills, military intelligence

training, systems and information that law enforcement can potentially use. This also

identified several benefits to the military by conducting intelligence support to law

enforcement for counterdrug and counterterrorism operations, most notably skills

enhancement and liaison with the interagency.

The second section explored how law enforcement visualized using military

intelligence capabilities in counterdrug and counterterrorism operations domestically.

This sought the opinions from DEA as the lead narcotics enforcement agency, FBI as the

lead counterterrorism agency, and the HIDTA program as the bridge from federal to

state, local, and tribal law enforcement. This showed that law enforcement has a definite

need for intelligence analysts and linguists, as well as intelligence training. Law

enforcement desires intelligence systems identified as military intelligence capabilities

that can assist them in monitoring activity, utilizing the systems’ stand–off range to

161

enhance operational security, as well as collaboration on information and intelligence

sharing with DoD consistent with law.

Now that we have looked at the military intelligence capabilities available to

support domestic law enforcement, and ascertained the capabilities that law enforcement

desires to assist them in domestic counterdrug and counterterrorism operations, we will in

Chapter 6 posit recommendations to employ military intelligence assets in the domestic

counterdrug and counterterrorism fight, as well as policy changes to clarify these

missions.

1General David H. Petraeus, U.S. Army, Speech to the Command and General

Staff College, Intermediate Level Education Class 09-01, Fort Leavenworth, KS, 22 September 2008.




5Director of Central Intelligence, Directive No. 6/4: Personnel Security Standards and Procedures Governing Eligibility for Access to Sensitive Compartmented Information (Washington, DC: Government Printing Office, 1998), Annex F.

6Office of Management and Budget, Reciprocal Recognition of Existing Personnel Security Clearances. (Washington DC: Office of Management and Budget, 17 July 2006).

7Department of Defense, Joint Publication 3-27, Homeland Defense (Washington, DC: Government Printing Office, 2007), III-12.

8Ibid.

9Department of Defense, Joint Publication 3-07.4, Joint Counterdrug Operations (Washington, DC: Government Printing Office, 2007), III-17.

162



12Department of Defense, DoD Directive 5525.5: Department of Defense Cooperation with Civilian Law Enforcement Officials (Washington, DC: Government Printing Office, 1986), 17-19.


14Federation of American Scientists. “Remote Battlefield Sensor System.” http://www.fas.org/man/dod-101/sys/land/rembass.htm (accessed 16 March 2009).

15Ibid.

16Ibid.

17Ibid.


19Kathleen M. Carley and Jeff Reminga. “ORA: Organization Risk Analyzer,” Center for Computational Analysis of Social and Organizational Systems, http://www.casos.cs.cmu.edu/publications/papers/carley_2004_oraorganizationrisk.pdf (accessed 16 March 2009), 1.

20Ibid.

21Clear Speed. “Company Awarded $337M for Homeland Security Data Network.” Cridtoday.com, 3, no. 17 (26 April 2004), http://www.gridtoday.com/ 04/0426/103101 (accessed 9 October 2007).

22Department of Defense. “SIPRNet Connectivity for National Guard Units in High Intensity Drug Trafficking Areas,” Robert Newberry (Washington, DC: Memorandum, 24 March 2003).

23Special Agent In-Charge James L. Capra, Drug Enforcement Administration, Speech to the Command and General Staff College, Intermediate Level Education class 09-01, Fort Leavenworth, KS, 22 September 2008.

24Executive Branch. “High Intensity Drug Trafficking Program.” Office of National Drug Control Policy. http://www.whitehousedrugpolicy.gov/HIDTA/ (accessed 17 March 2009).

163

25David Barton, interview by author, Kansas City, MO, 25 November 2008. See also Dean Yannacito, Stephen Bergeman, and Ben McIntosh, interview by author, Kansas City, MO, 17 December 2008.


27Dean Yannacito, Stephen Bergeman, and Ben McIntosh, interview by author, Kansas City, MO, 17 December 2008.

28Special Agent In-Charge James L. Capra, Drug Enforcement Administration, Speech to the Command and General Staff College, Intermediate Level Education class 09-01, Fort Leavenworth, KS, 22 September 2008.

29Ibid., Discovery in the context SAC Capra used equates to what information the defense attorney is authorized to look at. Since most defense attorneys do not possess security clearances, they would be unable to view the SIPRNet data, which would likely result in the SIPRNet data being suppressed from the prosecution’s case. An option to use SIPRNet data is to cause the law enforcement to independently come up with the same information in a way that allows the law enforcement information to be admitted into discovery, in which case the SIPRNet information is treated as an intelligence file, not subject to discovery.

30James L. Capra, interview by the author, Fort Leavenworth, KS, 31 October 2008.

31Ibid.

32Ibid.

33Ibid.

34Ibid.

35Ibid.


37Ibid.


39Ibid.

40Ibid.

164






46Ibid.

47Ibid.




51Ibid.

52Ibid.


54Ibid.


56Ibid.




60Ibid.

165

61Ibid.

62Ibid.

166

CHAPTER 6

CONCLUSIONS AND RECOMMENDATIONS

Military intelligence can provide passive support in a Title 10 status utilizing

many areas of its capability to support law enforcement and the interagency in

counterdrug and counterterrorism operations within the United States. The research in

this paper supports this position. The National Defense Strategy called on the Department

of Defense (DoD) to protect the Homeland from attack and provide interagency support

in response to natural or man-made disasters.1 The Intelligence Reform and Surveillance

Act 0f 2004 required all intelligence components to support each other in

counterterrorism.2 Additionally, the U.S. Department of State asserted that eighteen of

forty–one terrorist organizations around the world derive a substantial portion of their

support from drug trafficking.3 This results in terrorism and drug trafficking being

closely linked.

Chapter 6 is organized as follows:

Summary of findings in Chapters 4 and 5

Interpretation of findings described in Chapters 4 and 5

Recommendations


Summary of findings in Chapters 4 and 5

Chapter 4 showed that there is no statutory or case law proscription of military

intelligence support to law enforcement in counterdrug and counterterrorism operations.

However the terrorism support authorization is not as clear as the counterdrug support

authorization. The prohibitions come from regulatory guidance, which have not been

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updated in over twenty years, even though Congress passed several laws loosening the

legal restrictions of the 1970s.

Chapter 5 showed that the military intelligence community possesses several ways

in which it can provide passive support law enforcement in counterdrug and

counterterrorism. The military intelligence community can provide trained intelligence

analysts and linguists to enhance the capacity of federal agencies with a counterdrug or

counterterrorism mission, who already possess clearances the agencies require. These

personnel can not only process intelligence, but develop collection plans for the

supported law enforcement agencies (LEA) to execute, along with other planning and

training on planning as well.4 The military intelligence community possesses several

systems that law enforcement can use to include unmanned aerial vehicles (UAV),

remote sensor systems, radar, analytical programs and the Secure Internet Protocol

Router Network (SIPRNet), all of which are justified by law or DoD memoranda.5 This

support can benefit the military by complying with federal law regarding interagency

support, building networks military personnel can use while deployed overseas,

maintenance of perishable counterinsurgency intelligence skills, realistic linguist training

when not deployed, realistic UAV training, and early warning of potential threats to

military facilities or personnel.

Also in Chapter 5, law enforcement provided their views on how they envision

employing military intelligence capabilities in their overall counterdrug and

counterterrorism strategies. The foremost area they desire help in is intelligence analysis

support, and agreed the analysts need to be at the supported agency for three years to be

fully utilized.6 Along with intelligence analysis, the LEA supervisors desired help with

168

analytical reports and link charting, along with linguist support.7 All desired training in

intelligence planning, collection planning, and intelligence preparation of the operational

environment; however the supervisors expressed diverging opinions on different types of

intelligence training from these mentioned.8 All supervisors agreed Intelligence,

Reconnaissance and Surveillance systems are needed to assist them in their operations,

and that information collected should be retained by law enforcement, not the military.9

Concerning military information on SIPRNet, most of the supervisors desired to know

what was on it before making a judgment as to its usefulness in their agency’s operation,

but stated the concept of accessing the information was valid.10

Interpretations of Findings described in Chapters 4 and 5

The results of the research showed that military intelligence can support domestic

law enforcement in statute. Case law defined parameters of this support, limiting it to

passive measures, which cover the vast majority of military intelligence capabilities other

than counterintelligence agent support. DoD policy, directives, and regulations

concerning intelligence and domestic support to law enforcement have not been updated

to reflect current statutes and presidential executive orders in many cases for over twenty-

five years.

As far as support capabilities that the military intelligence community has to offer

to law enforcement, law enforcement supervisors desired to use them and saw the

intelligence capabilities as multipliers in law enforcement’s efforts to reduce the drug and

terrorism threats. Law enforcement views 28 Code of Federal Regulations (CFR), part 23

as protecting both law enforcement and the military from overreaching the legal

boundaries on intelligence collection, processing and dissemination.

169

The implications of these findings is that DoD has tremendous capabilities to

assist in reducing the risk of another 9/11 type terrorist attack within the United states. In

addition, with eighty percent of the nation’s intelligence capability, it is economically

prudent to leverage this capability to support the interagency, as Joint doctrine called for.

Three things came as a surprise in bearing on the thesis. First was the amount of

discussion the founding fathers had regarding the use of troops domestically, and then

they still reached the conclusion that it was in the nation’s best interest to do so in certain

cases outlined by Congressional law. Second, the case law regarding military support

defined the passive measures allowed for domestic law enforcement support and active

measures proscribed from support. Third, the fact that DoD did not update regulations

governing intelligence to match law and executive orders, as demonstrated by current

versions of intelligence regulations that have publication dates in the early 1980s.

Recommendations

Secondary Research Question No. 4: What, if any, changes to law and/or DoD

policy are needed to support law enforcement in counterdrug and counterterrorism

operations?

1. DoD seek congressional plain language for the counterterrorism mission

similar to the congressional counterdrug mission, as laid out in the National Defense

Authorization Act of 1989. While there is enough language among various laws to piece

this mission authorization together, this language would remove the ambiguity around the

subject to address the strategic communications aspect of the military conducting the

counterterrorism mission domestically.

170

2. The DOD Directive 5240.1 and 5525.5 along with DoD Regulation 5240.1-R

and AR 381-10 be updated to reflect current law and Executive Order guidance regarding

intelligence functions as part of the interagency and support to counterdrug and

counterterrorism operations. Incorporate restrictions from National Guard regulation

(NGR) 500-2 into Army regulation (AR) 381-10 governing how military intelligence can

support domestic law enforcement in a Title-10 status, and make it applicable to both the

counterdrug and counterterrorism missions. Finally, align directives and regulations that

currently contradict current published doctrine for homeland security and counterdrug

operations.

3. Update DoD directives to allow military intelligence to conduct concealed

monitoring outside of DoD installations consistent with federal law, as long as the

military is operating in direct support of law enforcement for counterdrug, illegal

immigration, or counterterrorism operations. Mission areas this would apply to include

along the borders to identify when traffickers are crossing the border and at suspected

drug growing or processing sites within the United States where there is no reasonable

expectation of privacy as defined in the court decision in Oliver v. United States.11 This

involves use of UAV and remotely monitored ground sensors. These systems would be

used where no reasonable expectation of privacy exists, which is where a reasonable

person is entitled to believe his or her actions are not subject to monitoring by electronic,

optical or mechanical devices.12 Utilizing concealed monitoring equipment on smuggling

and trafficking routes also conforms to the Intelligence Reform and Surveillance Act of

2004, where it calls for monitoring along the borders using UAV and electronic

sensors.13 NGR 500-2 provides good language to update Procedure Six by addressing

171

area verses person and requiring a law enforcement officer to be present or in direct

contact with the military unit performing the mission.14

4. Allow––or provide the ability for military intelligence to provide intelligence

analysis support. The military has built analytical capacity to deal with the

counterinsurgency environment, which includes acts of terrorism targeting the local

populace as well as military forces. Military intelligence analysts should augment and

reinforce the civilian intelligence community, as it is a ready capability with appropriate

clearances to do the job immediately.15 This is in addition to the counterdrug support to

the interagency authorized by the National Defense Authorization Act of 1989.16 This

also includes the responsibility to package a product in a form usable to the supported

agency; and in the agency’s report format. AR 381-10 does provide for this, but DoD

level regulations still have heavy restrictions on this or do not allow for it.17

5. Ensure that military intelligence personnel process Procedure Two information,

to include open source analysis, gathered from the law enforcement approved collection

plan at the supported LEA, which means the LEA owns the information and governs the

dissemination rules. This also assists law enforcement with fulfilling the requirement

listed in the Intelligence Reform Act of 2004 and draws the military’s expertise in doing

this in combat environments the past several decades.18 The database and law

enforcement sources for military intelligence analysts to check meet the intent of “least

intrusive means” outlined in DoD Directive 5240.1.19 If the military intelligence analyst

identifies information of concern to the military, most LEAs will allow the analyst to

share that information with the military. The specifics of sharing LEA information with

the military should be worked out in a Memorandum of Understanding with the LEA

172

before support is provided and done according to law. NGR 500-2 stated that the LEA is

responsible for setting dissemination rules, to include public affairs and press releases,

and serves as a guideline for DoD policy clarification where needed on the subject.20

6. Military intelligence should use its collection planning expertise to assist law

enforcement in collection planning to meet their investigatory requirements, as well as

the joint requirements in counterterrorism and counterdrug operations. In the context of

the DoD Regulation 5240.1-R the intelligence personnel should develop the collection

plan in support of law enforcement, and law enforcement needs to be the signatory

authority for the collection plan. In this way law enforcement still owns the plan, and

directs the military intelligence element supporting the agency to answering the

collection plan requirements, using passive measures as defined in United States v. Red

Feather to assist law enforcement in satisfying those requirements.21 These measures

include publicly available information, aerial and ground reconnaissance assets, agency

databases, and supported agency means after the agency obtains the valid legal process to

build the intelligence picture and prepare for agency dissemination. 22 This model fits

with what Joint Publication 3-07.4 calls for in counterdrug operations.23 Even Executive

Order 12333 allowed the intelligence community to participate in law enforcement

investigations of international terrorists and narcotics activities.24 Per DoD Directive

5525.5, conducting this support at the LEA keeps the military member out of a potential

law enforcement function, and also ensures that the LEA owns and retains the

information, not the military.25

7. Military intelligence should assist law enforcement in developing and

synchronizing the collection effort across the interagency to maximize limited resources

173

and support situational awareness. This includes medical intelligence in view of the bio-

terrorism threat, plus provides the additional effect of preparing for a non-terrorist

pandemic health crisis. Utilizing military intelligence capabilities to support law

enforcement can provide a fresh look to recommend to law enforcement information to

share with other agencies. This support will help minimize intelligence gaps across the

interagency, thereby reducing the likelihood of another 9/11 terrorist type event.

8. Allow the military intelligence community to provide linguist support to law

enforcement in counterdrug and counterterrorism functions. Again, supporting the

interagency with linguists will assist in the unity of effort to ensure the United States

government is massing its national power to defeat these organizations. This support

assists the unity of effort by leveraging existing capabilities in DoD to support law

enforcement, and also may key DoD linguists to recommend that law enforcement look

in DoD databases for information related to what the linguists translated.26 Military

intelligence should use its linguist ability to support law enforcement needs for

translation as listed in JP 3-07.4, Joint Counterdrug Operations, which stated linguist

services as a valid mission for counterdrug support to law enforcement. This is something

the military intelligence can do in the course of training under the Economy Act.27 In

accordance with the Deputy Assistant Secretary of Defense for Counter-narcotics

memorandum, this support extends to counterterrorism operations as well.28 Military

intelligence linguists can staff translation centers for the various federal law enforcement

agencies as part of the overall intelligence community, as a cost saving measure over

hiring civilian linguists. This also affords military linguists the ability to keep their

language skills current when not deployed.

174

9. Directional surveillance to find pinpoint location, using the direction finding

capabilities of the electronic equipment can be done with a plain reading of this DoD

Regulation 5240.1-R. Signals collection equipment used in the military is designed to

identify location, in addition to what is being transmitted. Turning off the auditory part of

the system and merely utilizing the direction finding aspects is a passive measure that

would help identify the targets location for law enforcement. Law enforcement can obtain

through legal process the frequency of a communication device a suspected trafficker or

terrorist operates on, and the authorization to track that device’s signal. This entails no

listening to the communication, only the location, so it should be legal by law.

10. The Organization Risk Analyzer (ORA) software should be used by law

enforcement to help identify key figures in drug or terrorist organizations for law

enforcement to focus its investigations on. ORA can be downloaded from a website for

use on any agency computer. Military intelligence analysts with experience on this

program can set it up for a LEA and train them on how to upload their data into the

program to identify missing links.

11. The Secure Internet Protocol Router Network (SIPRNet) is both a system and

a source of information that law enforcement can utilize in both counterdrug and

counterterrorism. Law enforcement can and should use data collected by military

personnel in operations around the world to identify key individuals in narcotics and

terrorist organizations, and use that information to guide them to find collaborating

unclassified information for use in court. This support is authorized by the Deputy

Assistant Secretary of Defense for Counternarcotics for both counterdrug and

counterterrorism for the National Guard, and should be expanded to include the active

175

components as well, since there are no legal proscriptions against active duty personnel

performing this mission.

12. The military and law enforcement need to expand sharing of intelligence

information regarding terrorism, drug smuggling, and alien trafficking, the latter being

integral to both terrorism and narcotics. As long as protocols are in place to ensure the

safeguards to civil liberty, the same logic the 9/11 Commission used to share intelligence

with private companies and foreign governments should allow military intelligence to

support civilian law enforcement. The governing regulation for civilian intelligence is 28

CFR, part 23; Director Dave Barton of the Midwest High Intensity Drug Trafficking Area

(HIDTA) and former chair of the HIDTA Intelligence Committee made the observations

that if the military personnel followed this like the law enforcement personnel, no issues

would result.29 Implementing this system would break the intelligence community out of

the Cold War paradigm, as the Commission envisioned.30

13. Military personnel should have assignments at the interagency to foster

relationships, planning, and intelligence and information exchange. Joint Publication 3-08

Counterdrug Operations and Joint Publication 3-27 advocate this approach, and the

Intelligence Reform Act of 2004 strongly recommended it to DoD.31

14. This thesis did not address two areas which warrant further study and are

relevant to the topic:

First, this thesis did not address what the Judge Advocate General (JAG) Corps is

teaching in regards to intelligence law and the legal basis for domestic support. This JAG

instruction needs to be compared to the legal basis of this research to identify any gaps in

176

instruction, to ensure JAG lawyers the broad basis to recommend support options to the

supported commander.

Second, this thesis did not examine who other countries utilize their military

intelligence organizations to support either counterdrug or counterterrorism missions.

Other countries may have already addressed issues American society faced, or may not

have addressed them and caused friction within their societies that the U.S. military can

learn from.


Military Intelligence can conduct passive activities to support law enforcement in

counterdrug and counterterrorism operations. Intelligence support can identify the drug

traffickers’ and the terrorists’ coherence, vulnerabilities, and patterns to allow law

enforcement to remove the organizations’ power. Intelligence resources can cover

important cross border smuggling routes not easily accessible to law enforcement as an

economy of effort, and help identify alternate routes once law enforcement interdicts the

primary ones. Intelligence support to counterdrug operations can assist in identifying

funding streams, patterns, and modus operandi to allow law enforcement to interdict and

remove the financial support, both at home and abroad. Intelligence can assist in

identifying drug or terrorist organization patterns and future operations, allowing law

enforcement to interdict globally, and military to interdict outside the United States.

Standard operating procedures can serve as a standing collection plan, allowing military

intelligence analysts supporting law enforcement and intelligence centers the freedom to

check databases and law enforcement sources at hand quickly, especially when time is

critical. From a defensive homeland defense operations standpoint, intelligence support

177

can assist in evaluating security and force protection tasks, and identify critical infra-

structure to protect. Law enforcement desires to have assistance in these areas from the

military, as law enforcement recognizes the military has more experience in the areas

mentions. The main hindrances to the military intelligence component offering this type

of support is regulatory, as statute and case law authorize and affirm this support

domestically. DoD and the Department of the Army need to update the intelligence and

domestic support regulations to reflect current legislation, executive guidance, and

doctrine, in order to afford better support to the interagency.

Military intelligence support to the interagency fits well within the framework

outlined in Joint Publication (JP) 3–27, Homeland Defense, as military intelligence

possesses provide critical capacity where the other federal agencies lack intelligence

capacity.32 This support also fits well in the statement within JP 3–27, Joint Counterdrug

Operations, where it stated “our approach to homeland defense must address all aspects

of the operational environment.”33 As JP 3-27 called for an active layered defense, DoD

needs to address the illegal alien, drug trafficking, and terrorism threats in this active

layered defense both within and outside the United States. Military intelligence needs to

support law enforcement in counter-terrorism, using the counterdrug paradigm as a

proven model. Since military intelligence components legally can support law

enforcement within the United States, it behooves DoD to use this capability to prevent

terrorist attacks within the homeland verses react to them.

1Department of Defense, National Defense Strategy” (Washington, DC:

Government Printing Office, 2008), 7.

2Intelligence Reform Act of 2004, Public Law 108-458, 108th Cong., 2nd Sess. (17 December 2004), § 1016 and 1021.

178

3Drug Enforcement Administration (DEA)–El Paso Intelligence Center (EPIC), briefing, Midwest High Intensity Drug Trafficking Area- Domestic Highway Enforcement Regional Coordination Committee, 2 October 2008.

4Department of Defense, Joint Publication 3-27, Homeland Defense (Washington, DC: Government Printing Office, 2007), III-12

5Intelligence Reform Act of 2004, Public Law 108-458, 108th Cong., 2nd Sess. (17 December 2004), § 5201. See also Newberry, Robert. “SIPRNet Connectivity for National Guard Units in High Intensity Drug Trafficking Areas,” Department of Defense. Washington, DC: Memorandum, 24 March 2003.


7Ibid., See also James L. Capra, interview by the author, Fort Leavenworth, KS, 31 October 2008.

8David Barton, interview by author, Kansas City, MO, 25 November 2008. See also Dean Yannacito, Stephen Bergeman, and Ben McIntosh, interview by author, Kansas City, MO, 17 December 2008. See also James L. Capra, interview by the author, Fort Leavenworth, KS, 31 October 2008.

9Ibid.


11Oliver v. United States, 466 U.S. 170 (1984).






179



19Department of Defense, DoD Directive 5240.1: Department of Defense Intelligence Activities (Washington, DC: Government Printing Office, 1988), 4.

20National Guard Bureau, NGR 500-2: National Guard Counterdrug Support (Washington, DC: Government Printing Office, 2000), 20-23.




24Executive Order no. 12333, Federal Register 73, (4 August 2008), Part 2.6.

25Department of Defense, DoD Directive 5525.5: Department of Defense Cooperation with Civilian Law Enforcement Officials (Washington, DC: Government Printing Office, 1986), 17.

26Robert J. Newberry, “Secure Internet Protocol Router Network (SIPRNet) Connectivity for National Guard Units in High Intensity drug trafficking Areas (HIDTA),” (Memorandum, Deputy Secretary of Defense–Counternarcotics, Washington, DC, March 2003).

27Department of Defense, Joint Publication 3-07.4 Joint Counterdrug Operations (Washington, DC: Government Printing Office, 2007), I-5-6.

28S. England, “Secure Use of Counternarcotics Funds for Counterterrorism,” (Memorandum, Deputy Secretary of Defense – Counternarcotics, Washington, DC, April 2006).


30Ibid., 417.


32 The 9/11 Commission Final Report recommended that the interagency share intelligence resources. As eighty percent of those intelligence resources reside within DoD, the military is the likely body to support the interagency to identify terrorist threats,

180

perform critical infrastructure analysis, and conduct vulnerability assessments of critical infrastructure.


181

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